OPINION: This article may contain commentary which reflects the author’s opinion.
While a three-judge federal appeals court in the D.C. Circuit ultimately sided with special counsel Jack Smith’s efforts to gain access to Donald Trump’s Twitter communications while barring the company from informing the former president, the official ruling contained a host of criticisms of Smith and his tactics.
In an opinion striking down an appeal to the full DC Circuit, U.S. District Judge Naomi Rao, joined by three other judges, noted that besides a First Amendment question, Smith’s request for Trump’s Twitter records also contained “consequential and novel questions about executive privilege and the balance of power between the President, Congress, and the courts.”
“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,” Rao wrote.
“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,” she said, adding: “We should not have endorsed this gambit.”
“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” in violation of the spirit of Article II of the Constitution, which outlines a president’s responsibilities and authorities, Rao noted.
“The options at this juncture are limited. Once informed of the search, President Trump could have intervened to protect claims of executive privilege, but did not, and so these issues are not properly before the en banc court. Nonetheless, executive privilege is vital to the energetic and independent exercise of the President’s Article II authority and to the separation of powers,” she continued.
“While the privilege may yield to the needs of a criminal investigation, in making this determination, the Supreme Court and this circuit have always carefully balanced executive privilege against other constitutional interests. By contrast, the court here permitted a special prosecutor to avoid even the assertion of executive privilege by allowing a warrant for presidential communications from a third party and then imposing a nondisclosure order,” she added.
During the hearing before the three-judge panel last week, one of the three federal appeals court judges considering arguments about whether Trump as president is immune from prosecution over his actions about post-2020 election challenges pressed a prosecutor with special counsel Smith’s team to answer a crucial question at one point.
As reported by The Hill, Judge Karen Henderson questioned James Pearce, a prosecutor with Smith’s team, “over how the panel’s decision could prevent a torrent of legal matters brought against former presidents.”
“How do we write an opinion that would stop the floodgates?” she asked.
Pearce went on to argue that since the Watergate scandal involving then-President Richard Nixon, there has been “widespread societal recognition” that presidents are not immune from prosecution — though Nixon resigned from office and was never prosecuted for his alleged role in the scandal.
He also argued that the Biden administration’s investigations and prosecutions of Trump won’t mean a “seachange” of similar legal actions against future presidents. Rather, he claimed that Trump’s indictments merely reflect the “unprecedented nature” of the charges against him.
At another point, Trump lawyer John Sauer pushed back on Judge Florence Pan after she “pointed out that Trump’s legal team made very different arguments when he was facing his second impeachment, saying that criminal prosecution lies with the courts,” The Hill reported.
He responded by saying whether a concession “may or may not have been made” at the time, it doesnt’ have any effect because the current proceedings are “very different.”
He also argued that allowing Trump to be prosecuted for the existing charges would have a “chilling effect” on future commanders-in-chief.