Experts: Trump's Twitter account may be key "part of the puzzle" for Jack Smith to "prove intent"

Legal experts break down what went on inside Twitter's court battle with Jack Smith — and its big implications

By Areeba Shah

Staff Writer

Published August 10, 2023 3:10PM (EDT)

Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Drew Angerer/Getty Images)
Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Drew Angerer/Getty Images)

Special Counsel Jack Smith obtained a secret search warrant for former President Donald Trump's Twitter account to look "for evidence of criminal offenses" earlier this year, according to unsealed court records

The court granted a search warrant as part of a criminal case requesting that Twitter, the platform now known as X, produce information to the government related to "@realDonaldTrump." The order came with a nondisclosure order, barring Twitter from informing anyone about the warrant's existence or its details. 

"[T]he district court found that there were 'reasonable grounds to believe' that disclosing the warrant to former President Trump 'would seriously jeopardize the ongoing investigation' by giving him 'an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates,'" according to the 34-page opinion. 

Initially, Twitter refused to comply with the Jan. 17 warrant and postponed providing the necessary materials specified in the search warrant. The company instead pursued legal challenges against the nondisclosure order, which ultimately proved to be unsuccessful.

While Twitter eventually complied with the warrant, it only provided the requested information in its entirety three days past the court-ordered deadline. The district court found Twitter in contempt and imposed a $350,000 sanction for its delay.

"Twitter's resistance to the warrant is likely rooted in Elon Musk's hostility to laws regulating conduct," V. James DeSimone, a California civil rights attorney, told Salon. "His Tesla company has been found liable for race discrimination and his apparent decision to defy laws protecting employees has resulted in numerous lawsuits against Twitter. And the delay in providing the documents, even after being ordered to by the court, could be related to the dysfunction within the company after Musk's purchase of it."

Twitter along with other social media companies have taken the position from a business standpoint that "it is better for them to resist freely complying with subpoenas for customers' information," Ted Spaulding, an Atlanta trial attorney, told Salon.

"They fight hard to be a platform that values privacy and have taken it to the extreme," Spaulding said. "They will fight the government in giving access to data because they ultimately believe it makes their platform more attractive to people because they will not just give up their user's data with a simple subpoena from someone, not even the government."

The government encountered issues when first trying to serve Twitter with the warrant and nondisclosure order on Jan. 17, 2023. Twitter's legal page was inoperative, which delayed the government from serving Twitter through its website until two days later, according to the documents. 

When the government contacted Twitter's counsel to check on the status of their compliance on Jan. 25, the company's counsel responded by saying that she hadn't heard anything about the warrant and that an on-time production "would be a very tight turnaround," but she confirmed that the account's available data was preserved.

Finally, on Feb. 1, which was four days after the compliance deadline, Twitter objected to producing any of the account information. While the company did not challenge the legitimacy of the search warrant, it contended that the nondisclosure order violated the First Amendment. 

"Twitter informed the government that it would not comply with the warrant until the district court assessed the legality of the nondisclosure order," according to unsealed records.

Twitter submitted a motion on Feb. 2, to "vacate or modify the nondisclosure order." Concurrently, Smith's team sought a contempt order from U.S. District Court Judge Beryl Howell, the federal judge overseeing the matter at the time.

The government suggested sanctions starting at $50,000 per day and doubling every day that Twitter did not comply. Howell approved the suggestion and Twitter did not object to the sanctions formula. 

The court ordered Twitter to produce the records outlined in the warrant by 5 p.m. on Feb. 7. 

"If Twitter did not purge its contempt by that time, the district court ordered 'escalating daily fines' that were 'designed to ensure Twitter complies with the search warrant,'" according to documents. 

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Twitter missed the deadline and only produced some records, failing to comply with the request.  As a result, the government fined Twitter a total of $350,000 after they submitted all the records on Feb. 9.

There is little indication in the documents regarding the specific nature of Smith's request. It only mentioned that the special counsel directed the company "to produce data and records" related to the ex-president's account.

"Getting access to [Trump's] Twitter account could be hugely beneficial to the prosecution," Spaulding said. "They are looking for evidence of Trump's mindset leading up to Jan. 6 to prove intent to commit a crime. That is normally very hard to prove because you cannot really get into the mind of the accused. The thought is his Twitter posts could provide them insight into what Trump was thinking and ultimately his intentions."

Smith may be interested in obtaining internal Twitter information to understand the reach of Trump's tweets, Temidayo Aganga-Williams, white-collar partner at Selendy Gay Elsberg and former senior investigative counsel for the House Jan. 6 committee, told Salon. 

He referred to Trump's infamous December 19, 2020 "'Be There. Will Be Wild!'" tweet, which called people to come to Washington, D.C. on Jan. 6 and "set off the planning of the rally that preceded the attack". 

"It is an essential part of the puzzle of Trump's post-election actions," Aganga-Williams said.

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Trump has responded to the secret search warrant as he usually does attacking President Joe Biden and referring to the special counsel as "deranged".

"Just found out that Crooked Joe Biden's DOJ secretly attacked my Twitter account, making it a point not to let me know about this major 'hit' on my civil rights," he wrote on Truth Social. "My Political Opponent is going CRAZY trying to infringe on my Campaign for President. Nothing like this has ever happened before. Does the First Amendment still exist? Did Deranged Jack Smith tell the Unselects to DESTROY & DELETE all evidence? These are DARK DAYS IN AMERICA!"

But his First Amendment claim has no merit, especially with respect to the subpoena itself, DeSimone pointed out.

"It will ultimately be for a jury to decide if the First Amendment protects a sitting president's attempt to prevent his democratically elected opponent from taking office," DeSimone said. "Words can be crimes, that is what a conspiracy is all about. Charles Manson used words to manipulate his followers to kill, Trump used his words to manipulate his followers into trying to prevent the peaceful transfer of power, a hallmark of American democracy. Those followers would not have been chanting 'hang Mike Pence' without being incited to do so."

Spaulding added that access to Trump's posts is not really a First Amendment issue since the First Amendment is really about whether someone is being suppressed in their ability to speak their mind. 

"Not whether someone can use your speech against you once you have said it," he said. 

This is not the first time that Twitter has taken a troubling stance as it relates to Trump's conduct after the 2020 election, Aganga-Williams told Salon. The January 6th committee obtained evidence that social media companies like Twitter largely ignored concerns that were raised internally prior to January 6.  

"Now, Twitter's decision regarding this validly issued subpoena demonstrates that the social media company has not learned any lessons from its part in what transpired after the 2020 election," he said.

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Donald Trump Elon Musk Jack Smith January 6 Politics Twitter