Elon Musk’s X Corp. has asked the U.S. Supreme Court to consider stepping in against a process that lets officials obtain information from social media companies and bars the companies from informing people whose information is handed over.
The process wrongly enables officials to “access and review potentially privileged materials without any opportunity for the user to assert privileges—including constitutional privileges,” lawyers for X said in a filing to the nation’s top court.
Unsealed documents in 2023 showed that X provided data and records from former President Donald Trump’s Twitter account to special counsel Jack Smith after Mr. Smith obtained a search warrant.
X was blocked from informing President Trump by a nondisclosure order that Mr. Smith also obtained.
The order said disclosing the warrant would result in “destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation,” and let President Trump “flee from prosecution.”
X challenged the order, arguing it violated its First Amendment rights and noting that President Trump might have reason to claim executive privilege, or presidential privilege. The company wanted to alert the former president so he could assert the privilege, but U.S. District Judge Beryl Howell ruled against it, claiming during a hearing that the only reason X was issuing the challenge was “because the CEO wants to cozy up with the former president.”
A panel of the U.S. Court of Appeals for the District of Columbia upheld the ruling from Judge Howell, an appointee of former President Barack Obama.
“The government proffered two compelling interests that supported nondisclosure of the search warrant: preserving the integrity and maintaining the secrecy of its ongoing criminal investigation of the events surrounding January 6, 2021,” U.S. Circuit Judge Florence Pan wrote. She was joined by Circuit Judges Cornelia Pillard and Michelle Childs. Judge Pillard was appointed by President Obama; Judges Pan and Childs were appointed by President Joe Biden.
The full court denied a rehearing en banc, although four judges said “we should not have endorsed this gambit,” referring to the combination of a warrant and nondisclosure order. “Rather than follow established precedent, for the first time in American history, a court allowed access to presidential communications before any scrutiny of executive privilege,” Circuit Judge Neomi Rao wrote in a dissent. The appointee of President Trump was joined by Circuit Judges Gregory Katsas and Justin Walker, other President Trump appointees; and Judge Karen Henderson, an appointee of former President George H.W. Bush.
The Supreme Court should take up the case because the majority’s opinion conflicts with Supreme Court precedent and rulings from other circuits, lawyers for X said in the new petition.
“This court has long held that holders of executive privilege must have notice and an opportunity to assert privilege before confidentiality of the potentially privileged documents is breached. The decision below departs from that precedent. Because former President Trump was not informed of the warrant before his records were produced, he could not timely assert executive privilege,” they wrote.
Several circuit courts have issued contrasting decisions, which creates a split that needs resolved, X lawyers said. That included a ruling from the U.S. Court of Appeals for the Eleventh Circuit that cleared a protocol for a warrant that involved giving people with attorney-client privilege “the first opportunity to identify potentially privileged materials” and did not let investigators access the materials until the parties or the court approved.
Another circuit split exists in regard to the nondisclosure order, the lawyers said.
In Freedman v. Maryland, the Supreme Court ruled that “any restraint prior to judicial review can be imposed only briefly in order to preserve the status quo.” While two circuit courts have found the ruling does not apply to nondisclosure orders, the U.S. Court of Appeals for the Second Circuit has found that some nondisclosure orders must adhere to the ruling.
The conflict “warrants this court’s review,” X lawyers said.
The appeals court panel also ruled that the government can draw nondisclosure orders on warrants anytime a warrant would result in the production of any information that has not been publicly available, even when the public is aware “of the broader investigation” and grant jury subpoenas.
“If the ruling remains in place, the government almost always can obtain a nondisclosure order for a new warrant—no matter how public the investigation—because the warrant itself will always be new and ‘different’ information,” X lawyers argued.
The case implicates not only executive privilege but other types of privilege, including that between a doctor and patient, the lawyers said.
“In cases involving executive privilege, which typically arise in the D.C. Circuit, the government can now circumvent the [Presidential Records Act] and deny privilege-holders their opportunity to assert privilege by seeking communications from, and gagging, third parties. And in the tens of thousands of other cases where the government obtains nondisclosure orders, the government can invade other privileges—including attorney-client, journalist-source, and doctor-patient—without notice,” they said. “Meanwhile, the First Amendment rights of service providers like Twitter to notify users in time for them to assert privileges can be irreparably injured.”
The Department of Justice, which employs Mr. Smith, did not respond to a request for comment. Its response to the filing is due by July 3.
