Tweets

The United States Court of Appeals for the District of Columbia Circuit denied rehearing en banc to a district order granting access to a certain former President’s Twitter (X) account to a certain prosecutor

Seeking access to former President Donald Trump’s Twitter/X account, Special Counsel Jack Smith directed a search warrant at Twitter and obtained a nondisclosure order that prevented Twitter from informing President Trump about the search. The Special Counsel’s approach obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act. The district court and this court permitted this arrangement without any consideration of the consequential executive privilege issues raised by this unprecedented search.

Circuit Judge Rao dissented, joined by Circuit Judges Henderson, Katsas and Walker

Before this case, presidential materials were presumptively privileged, even in the absence of an assertion of privilege. Such presumption recognized the importance of confidentiality to the effective and energetic discharge of the President’s duties. The presumption also limited the role of the courts when called on to balance executive privilege against other constitutional interests. Without a word, the district court and our court have flipped the presumption.

The absence of a presumptive privilege particularly threatens the Chief Executive when, as here, a third party holds presidential communications. See Mazars, 140 S. Ct. at 2035. And to be sure it aggrandizes the courts, which will have the power to determine whether executive privilege will be considered before its breach. Without a presumption for executive privilege, new questions will invariably arise, particularly because nothing in the panel’s opinion is limited to a former President. What if, in the course of a criminal investigation, a special counsel sought a warrant for the incumbent President’s communications from a private email or phone provider? Under this court’s decision, executive privilege isn’t even on the table, so long as the special counsel makes a showing that a warrant and nondisclosure order are necessary to the prosecution. And following the Special Counsel’s roadmap, what would prevent a state prosecutor
from using a search warrant and nondisclosure order to obtain presidential communications from a third-party messaging application? And how might Congress benefit from thisprecedent when it seeks to subpoena presidential materials from third parties in an investigation or impeachment inquiry?

Not every “wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). Perhaps the threat here was hard to spot. Nevertheless, judicial disregard of executive privilege undermines the Presidency, not just the former President being investigated in this case.

(Mike Frisch)