The disclosure of a subpoena of Twitter by Special Counsel Jack Smith was surprising in a number of respects, including the hefty $350,000 fine imposed by U.S. District Court Beryl Howell (left) for a three-day delay as the company sought to address the demand. However, the two most surprising, and concerning, elements were that the subpoena was secret and Howell justified it, in part, on Trump being a flight risk. Neither seems warranted in this case even assuming that the subpoena was in other respects warranted.
Special counsel Jack Smith subpoenaed and obtained a search warrant related to former President Trump’s account on Twitter, now X. However, he also sought the information with a nondisclosure order that prohibited X from disclosing the existence or contents of the search warrant to Trump or anyone else. However, Trump already knew he was under investigation, so why was there a need for nondisclosure?
The court found that Trump might change his course of conduct but that seems unlikely. If anything Trump has been most consistent in his social media practices. Indeed, while some of us have criticized him for his posting, he has remained entirely undeterred.
The lower court stated that “The 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.'”
It is not clear how Trump would destroy the evidence in possession of Twitter, particularly after the company is informed that it must preserve and disclose the meta data.
Then there was the added rational that was tucked into footnote 2 of the D.C. Circuit opinion: Trump might flee.
Judge Howell actually agreed that the former President was a flight risk.
Process that for a second. Trump has 24/7 security. So Howell agreed that he might shake his sizable security detail, evade them, and go on the lam. He is one of the most recognized figures in the world. He would have to go to Mars to live incognito.
It is facially absurd. Trump has been sued and criminally charged across the country. He has never made a break for it. Where would he go? Cuba?
The finding of a flight risk undermines the credibility of the court’s order. This is not to question the ability to force the release of the information. However, the need for secrecy is far from evident. Rather it succeeded in preventing any challenge.
Here is the D.C. Circuit opinion: Trump-Twitter Opinion