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Twitter, Trump and a Potential Trove of Data
Donald Trump and Elon Musk. Photo credit: AP / File
We already had reason enough to distrust and disdain the new owner of the company formerly known as Twitter. From the summary firing of staff including higher-ups in Trust and Safety, to the replatforming of neo-Nazis, to his regurgitation of Russian propaganda, to his amplification of conspiracy theories and misinformation on everything from Paul Pelosi’s assailant to Covid vaccines, Musk has been a real piece of work these past 12 months—on top of being one of the most childish and petty manbabies on the planet.
But to be honest, I didn’t have “federal court sanctions Twitter over a third of a million dollars for delaying a Justice Department investigation” on my Elon Musk Bingo card.
This fascinating and developing story has a few parts to it, so let’s break it down.
The secret subpoena to Twitter
Politico’s Kyle Cheney reported on Tuesday that Special Counsel Jack Smith had served a search warrant on Twitter earlier this year to obtain data from Donald Trump’s account, including all his direct messages, draft tweets, and location data from October 2020 to January 2021.
Specifically, per Politico, the warrant demanded that Twitter produce all of the following:
Accounts associated with @realdonaldtrump that the former president might have used in the same device;
Devices used to log into the @realdonaldtrump account;
IP addresses used to log into the account between October 2020 and January 2021;
Privacy settings and history;
All tweets “created, drafted, favorited/liked, or retweeted” by @realdonaldtrump, including any subsequently deleted;
All direct messages “sent from, received by, stored in draft form in, or otherwise associated with” @realdonaldtrump;
All records of searches from October 2020 to January 2021; and
Location information for the user of @realdonaldtrump from October 2020 to January 2021.
It’s smart of Smith to delve into Trump’s DMs, to find evidence of wrongdoing, and then seek to obtain further evidence by warrant. As we have learned, Trump often says and does things in private that reveal his true thinking.
Smith’s warrant—which I should note he could have obtained only after establishing probable cause to believe that evidence of a crime existed within the data—was under the radar and subject to a Protective Order. That meant Trump was not aware of the warrant at the time it was served, nor likely up until quite recently when the government provided its discovery to him.
Twitter resists the warrant by attacking the non-disclosure order
When a company like Twitter receives a search warrant, it ought to comply with it, right? And surely, it wouldn’t then seek to notify the very person whose account is the subject of the confidential search, right?
Wrong. In this case, Twitter, which was 100% under Musk’s control by then, mounted what then-chief D.C. district court Judge Beryl Howell described as a “momentous” effort to delay turning over the data.
Twitter even initiated what the judge called “extraordinary” steps to attempt to give Trump advance notice of the warrant, despite warnings from prosecutors that, based on past experience, letting Trump know about the warrant could damage their investigation. Indeed, the court already had found that disclosing the warrant to Trump “would seriously jeopardize the ongoing investigation” by giving Trump “an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates.”
(The record also shows that Twitter even gave prosecutors the run-around when they tried to serve the warrant on the company. The government first tried to submit the warrant through Twitter’s website for legal requests, which took two days. Then a full six days later, when investigators checked on the status of the warrant, they were informed by Twitter’s counsel that she “had not heard anything” about it.)
Twitter and Musk get smacked down in court
The company missed a court ordered deadline to turn over the data, so in February Judge Howell fined the company $350,000 for its failure to comply.
Twitter’s lawyers had raised concerns that the data, including any DMs, might be covered by “executive privilege.” The judge shot down this argument, wondering how they could possibly argue that Trump was conducting government business with his advisors via Twitter DMs.
After Twitter admitted that there was “some volume” of DMs responsive to the subpoena but argued these were “confidential communications,” the judge blasted the company’s lawyers for having a “total misunderstanding of what the presidential communications privilege is.”
The judge also tore into the company on why it was leaning in so hard with respect to this particular search warrant, claiming privilege and delaying the execution of the search when it would not have done so for any other user raising other privileges, such as marital or religious privileges—and hadn’t done so in over 17 years. She seemed particularly irked by how much court time Twitter’s position would eat up were its position accepted.
Judge Howell then raised grave concerns about Musk himself and why the company was acting this way, even disobeying a court order to produce the data by a certain date. She asked what all of us want to know: “Is it because the new CEO wants to cozy up with the former president?” she demanded, with the Twitter lawyer clearly on the defensive.
She wasn’t quite done. Her ire apparent, she asked, “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?… Because it’s a little bit of an ironic position, don’t you think?”
The lawyer responded no, it was about a “facially invalid” non-disclosure order.
“Is this to make Donald Trump feel like he is a particularly welcomed new renewed user of Twitter?” Judge Howell pressed, referring to a decision by Musk to reinstate Trump’s account, which had been suspended following the January 6 insurrection.
Curiously, on November 21, 2022, the Verge reported that Twitter under Musk was moving to encrypt all DMs, with the help of the creator of Signal. Musk stated at the time that he wanted to make it so that “I can’t look at anyone’s DMs if somebody has a gun to my head.”
This was just three days after Special Counsel Jack Smith began overseeing the ongoing criminal investigation on November 18, 2022.
Twitter appealed the non-disclosure order and the sanctions order, but the Court of Appeals for the D.C. Circuit upheld it in all respects.
Jack Smith now has Trump’s Twitter DMs
Ultimately, Twitter complied with the warrant and turned over the requested data, and Trump didn’t learn about it until the matter was unsealed. We don’t yet know what, if anything, the data contained. But we can take some educated guesses about what Smith was after.
For starters, Smith will want to establish a clear chain of custody over certain critical tweets, including establishing that they came directly from Trump’s own IP address rather than, say, an aide’s. These include the “Will be wild!” tweet he sent, right after a fateful meeting of “Team Crazy” on December 18, 2020, calling his followers to gather in Washington on January 6. It would also include the “Pence is a coward” tweet Trump sent at the height of the attack on the Capitol.
Then there are the possible communications, of which Twitter has said there is “some volume.” Trump is notorious for not sending emails, but as former Mueller investigation prosecutor Ryan Goodman noted on CNN, it doesn’t mean others in Trump’s circle didn’t attempt to message him. And we know from different contexts that it is often other parties’ electronic communications that have landed the co-conspirators, such as coup plotting attorney John Eastman, in big trouble.
And after all, if you ever really needed to get a message to the ex-president, there were two places everyone knew he spent most of his time: Fox “News” and Twitter. And on the day of the insurrection itself, when everyone within his inner circle was desperately trying to reach Trump, through Ivanka and Mark Meadows, to get him to call off the mob, it wouldn’t surprise me in the least if he also received a number of frantic DMs in his Twitter account.
Meanwhile, I should point out that Trump took the news that his Twitter account was in the hands of prosecutors pretty well.
I’d like to thank everyone who stepped up with pledges of support in this most difficult month. Thanks to Elon Musk, as of yesterday my company has had to lay off its entire video department after Musk scared all the advertisers away. So yes, I really do despise him. To help keep us afloat, I am now writing half the articles at our publication, The Big Picture, while drawing no paychecks. If you’d like to subscribe and support our efforts at independent, quality journalism, please consider becoming a paid supporter here: thinkbigpicture.substack.com/subscribe.
100% of your money will go to help keep our staff of writers, editors, and admins paid and the publication thriving. Look for my piece out later today on The Big Picture on how Judge Tanya Chutkan might tame Donald Trump! Thank you. — Jay