Jack Smith, special prosecutor. (Credit: Kosovo Specialist Chambers and Specialist Prosecutor’s Office)
(…) In August 2023, a three-judge panel of Democratic judges on the court of appeals in Washington upheld all of Howell’s decisions. Writing for the 3-0 majority, Biden appointee Florence Pan, last heard presenting the outlandish “Seal Team Six” hypothetical during oral arguments on Trump’s immunity appeal, gave short shrift to any executive privilege considerations at play. The panel schizophrenically treated Trump like any other Twitter user, immune from special treatment by the government and the courts, while simultaneously referring to him as the “former president.”
For example, in one passage defending Howell’s decision not to allow Twitter to notify Trump about even a portion of the warrant, Pan said, “such action would not have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure order was to avoid tipping off the former President about the warrant’s existence.”
Not giving up, Twitter then asked the full circuit court for an “en banc,” meaning full court, review of the panel’s decision.
While denying Twitter’s request for reconsideration on January 16, four Republican judges took the unusual step of writing a statement attached to the order. The 12-page missive blasted Smith, Howell, and Pan for violating the Constitution and other “balance of power” protections.
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. 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.
Judge Neomi Rao joined by Judges Gregory Katsas, Justin Walker, and Karen Henderson.
From left to right: Judge Justin Walker, Judge Neomi Rao, Judge Karen Henderson, and Judge Gregory Katsas (Credit: public domain)
Rao condemned Smith for seeking to obtain the records via court order rather than ask the National Archives for the data, which would have automatically triggered notice to the former president, something Smith purposely wanted to avoid. “I can find no precedent for what occurred here, namely the court-ordered disclosure of presidential communications without notice to the President and without any adjudication of executive privilege.” She called the approach an “end-run around executive privilege.”
She continued to excoriate her colleagues in the D.C. courthouse. “The district court (Howell) afforded no opportunity for the former President to invoke executive privilege before disclosure, and this court (Pan) made no mention of the privilege concerns entangled in a third-party search of a President’s social media account. This approach directly contravenes the principles and procedures long used to adjudicate claims of executive privilege.”
Rao said Howell should have considered the records sought by Smith as “presumptively privileged” and allowed Trump to assert privilege, a longstanding practice that was “flipped” by Howell and Smith.
She also contemplated the future consequences of their decisions—something the Department of Justice and federal judges in Washington routinely fail to consider; as long as historical practices, the rule of law, and the Constitution can be turned on their collective head to destroy Trump, the permanent fall-out does not matter.
Rao explained how the approach could apply to a sitting president, too. “What if, in the course of a criminal investigation, a special counsel sought a warrant for the incumbent President’s communications from a private email or phone provider? Under this court’s decision, executive privilege isn’t even on the table, so long as the special counsel makes a showing that a warrant and nondisclosure order are necessary to the prosecution. And following the Special Counsel’s roadmap, what would prevent a state prosecutor from using a search warrant and nondisclosure order to obtain presidential communications from a third-party messaging application?”
It is unclear whether Twitter will ask the Supreme Court to review the matter. Unfortunately, since the data was produced and the nondisclosure order executed, the issue could be considered “moot” at this point.
But given Rao’s (legitimate) hypothetical at the end, perhaps Smith, Howell, and Pan should hope for a reversal. Otherwise, the dangerous new ground set by their reckless, partisan decisions could come back to bite the hand that now feeds them. (Read more: Julie Kelley/Substack, 1/10/2024) (Archive)