X Asks Supreme Court to Examine Rulings on Trump Files

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Social media site X, formerly Twitter, wants the U.S. Supreme Court to review former rulings that forced the company to turn over data from Donald Trump’s account without informing him.

The decisions enabled special counsel Jack Smith an “unprecedented end-run around executive privilege,” it wrote in a filing.

In his investigation into Trump’s alleged bid to subvert the 2020 election, Smith asked for and was granted a search warrant for data relating to Trump’s Twitter records, searches, and communications from October 2020 to January 2021, while Trump was still a sitting president.

In addition, Washington, D.C., District Judge Beryl Howell handed down a “nondisclosure order” that barred X from informing Trump about Smith’s subpoena for the records. The D.C. Circuit Court of Appeals upheld Howell’s decision in January.

“As a result, ‘for the first time in American history,’ a court ‘ordered disclosure of presidential communications without notice to the President and without any adjudication of executive privilege,’ ” X said in its filing to SCOTUS.

X is trying to prevent that from happening again in its two questions posed to the high court:

“Whether an electronic communications service provider can be compelled to produce potentially privileged user communications before adjudication of the provider’s First Amendment challenge to a nondisclosure order that prohibits it from notifying the user and before the user had notice and an opportunity to assert privilege, including executive privilege.”

And: “Whether the First Amendment permits gagging a provider in a highly public investigation where the government does not (a) demonstrate that disclosure would jeopardize the investigation’s integrity; or (b) disprove the workability of a less-restrictive alternative, such as disclosure to a representative designated by a former President to assert executive privilege on his behalf.”

For its part, X, now owned by Elon Musk and represented by law firm WilmerHale in the matter, put up a fight in turning over the data, calling Smith’s subpoena “an unprecedented end-run around executive privilege.”

“Although Twitter had provided these communications to the National Archives and Records Administration (NARA), the government informed Twitter and the district court that it ‘did not want to obtain data from NARA, as it would require notification [to the former President] pursuant to the Presidential Records Act,’ ” X wrote in its filing.

Along the way, X was fined $350,000 in February 2023 by Howell for dragging its feet in producing the trove of data to Smith.

“Twitter had reason to believe both that the nondisclosure order was invalid because the investigation was highly public, and that the warrant demanded potentially privileged presidential records,” it said in the filing.