D.C.Cir. denies rehearing en banc in Trump Twitter SW case

The D.C. Cir. denied rehearing from the Twitter account search warrant for former President Trump’s account, In re Sealed Case, 77 F.4th 815 (D.C. Cir. July 18, 2023) (corrected and unredacted version), in In re Search of Info. Stored at Premises Controlled by Twitter, Inc., 2024 U.S. App. LEXIS 977 (D.C. Cir. Jan. 16, 2024). From the “statement respecting a denial of rehearing en banc,” not a dissenting opinion (sort of 7-4):

RAO, Circuit Judge, statement respecting the denial of rehearing en banc, joined by HENDERSON, KATSAS, and WALKER, Circuit Judges: This case turned on the First Amendment rights of a social media company, but looming in the background are 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. 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.

We should not have endorsed this gambit. “[A]ny court completely in the dark as to what Presidential files contain is duty bound to respect the singularly unique role under Art. II of a President’s communications and activities” by affording such communications a presumptive privilege. United States v. Haldeman, 559 F.2d 31, 76 (D.C. Cir. 1976) (en banc) (cleaned up). 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.

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. 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. Because these issues are likely to recur, I write separately to explain how the decisions in this case break with longstanding precedent and gut the constitutional protections for executive privilege.

A cert petition is due April 15, 2024.