Special counsel Jack Smith delivers remarks on a recently unsealed indictment against former President Donald Trump, in Washington on June 9, 2023. (Chip Somodevilla/Getty Images)
Twitter has handed over a voluminous set of data from former President Donald Trump’s account to special counsel Jack Smith, newly unsealed documents show.
Twitter, now known as X, gave Mr. Smith’s team data including deleted direct messages, other direct messages, draft posts, and information on the locations of users who posted to the account, lawyers for the company said in a Feb. 9 closed-door court hearing, a transcript of which was just made public.
The data included what Twitter described as “confidential communications,” or messages between President Trump and his senior advisers.
Twitter challenged a warrant issued by U.S. District Judge Beryl Howell, who was appointed by President Barack Obama, for the data, although the judge shot the challenge down, ruling that Mr. Smith had provided sufficient evidence for the warrant and a linked non-disclosure order.
Twitter said the latter infringed on its constitutional rights and sought clearance to alert President Trump to the warrant’s existence so he could file opposition based on claims of executive privilege, but Judge Howell upheld both orders and sanctioned Twitter for failure to provide the data in a timely manner.
While Twitter appealed the ruling, the court backed Judge Howell, finding that prosecutors had an “unquestionably compelling” interest in pursuing their investigation of President Trump and keeping it secret from him and also because the order was “narrowly tailored,” such as by limiting its duration to 180 days.
The newly released transcript was part of a tranche of unsealed documents that also includes the warrant.
Mr. Smith’s team was authorized by the warrant to obtain an extensive amount of data from Twitter, including all records from October 2020 to January 2021 of composed posts, whether they remained in draft form or not; all direct messages that were sent, received, or drafted; all devices used to access the account; and any credit card or bank account information linked to the account.
Ari Holtzblatt, an attorney representing Twitter, told the judge during the February hearing that there was no bank or credit card information associated with the account.
“Really? Then how did somebody pay for the account at all?” Judge Howell asked. “You don’t have to provide that information to use a Twitter account?”
“That’s correct, your honor,” Mr. Holtzblatt said. “The Twitter service is free.”
Twitter also was ordered to hand over lists of users President Trump followed and blocked, users who liked or shared the president’s posts, and all searches he performed from October 2020 to January 2021.
Twitter produced many of the records but was still working on compiling some, including data that may have been deleted by a person with access to the account after Twitter reinstated it in late 2022, lawyers for the company said. The company suspended President Trump in 2021 following the Jan. 6 U.S. Capitol breach.
Twitter has conveyed to the government that President Trump had to delete posts to have the account reinstated, government lawyers testified.
President Trump, who is running for president in the 2024 election, has said that the actions by President Joe Biden’s Department of Justice were aimed at “trying to infringe” on his campaign. He said in a recent statement, “Does the First Amendment still exist?”
Challenge
Along with the warrant, Mr. Smith’s team had asked for a non-disclosure order compelling Twitter to keep the warrant secret, arguing that letting President Trump know of the warrant would result in harm.
The secrecy, they said, would help make sure a grand jury considering charges against President Trump would be able to freely deliberate and prevent efforts to tamper with witnesses.
The existence of the investigation is public, being made known by the same Department of Justice, and numerous reports have detailed steps taken by the grand jury, including people who have testified before it, Twitter noted.
The company said that the non-disclosure order was violating its First Amendment rights and pointed to its terms that tell users it will notify them of disclosures of account information unless prohibited from doing so.
“The non-disclosure order in this case is particularly significant given that the warrant seeks the contents of private communications sent to or from the then-President of the United States that raise unique and complex issues of executive privilege,” Twitter said in one filing.
“Allowing Twitter the opportunity to notify the account holder would afford the user—the principal party in interest for executive privilege—an opportunity to address the legal issues surrounding a demand for presidential communications in this unique context, and give this court a full adversarial process in which to evaluate them.”
Government officials said that President Trump has a history of obstructing investigations, pointing to the report issued by former special counsel Robert Mueller, and that disclosure would harm its investigation.
Judge Howell questioned Twitter lawyers on their motivation for challenging the non-disclosure order.
“Is it because the CEO wants to cozy up with the former president?” she asked at one point, referring to Twitter CEO Elon Musk.
“No, your honor,” a Twitter lawyer said. “It’s whether or not they are facially valid.”
“It couldn’t be that Twitter is trying to make up for the fact that it kicked Donald Trump off Twitter for some period of time that it now is standing up to protect First Amendment rights here, is it?” Judge Howell said later.
“No,” a Twitter lawyer said.