Jack Smith Smacked Down by Appellate Judges for Violating Donald Trump’s Executive Privilege

Special Counsel Jack Smith has been excoriated by a panel of four appellate court judges for his unprecedented search of a former president’s private communications.

The judges condemned Smith’s violation of executive privilege by searching former President Donald Trump’s Twitter files.

“Holy sh*t: 4 judges on DC appellate court just delivered a scorching smack down of Special Counsel Jack Smith, Judge Beryl Howell, and Judge Florence Pan for search of Trump’s Twitter file,” reported Julie Kelly.

“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,” she added while citing a user named @FamilyManAndrew.

The court document states: “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 judges added. “The Special Counsel’s approach obscured and dodged the careful balance Congress struck in the Presidential Records Act. The district court and this court permitted the arrangement without any consideration of the consequential executive privilege issues raised by this unprecedented search.”

“We should not have endorsed this gambit,” the judges added.

“‘Any 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,” the judges added, citing the legal precedent in United States v. Haldeman.

In December, Special Counsel Jack Smith announced that he intended to use the former president’s extracted Twitter files and phone data as evidence in his Jan. 6 trial in Washington D.C. on March 4, the day before Super Tuesday.

As reported by Politico, “Special counsel Jack Smith has extracted data from the cell phone Donald Trump used while in the White House and plans to present evidence of his findings to a Washington, D.C. jury to demonstrate how Trump used the phone in the weeks during which he attempted to subvert the 2020 election.”

Data from the ex-president’s phone, Politico added, “could reveal day-to-day details of his final weeks in office, including his daily movements, his Twitter habits and any other aides who had access to his accounts and devices. The data, for example, could help show whether Trump personally approved or sent a fateful tweet attacking his vice president, Mike Pence, during the Jan. 6 riot at the Capitol.”

According to the court filing, the government had submitted a notice of an expert witness who has retrieved the former president’s cell phone data and location data.

The Government expects that Expert 1 will testify about his/her use of ArcGIS (Geographic
Information Systems) software to create a map of the Google location history data produced in response to a search warrant. Specifically, Expert 1 plotted the location history data for Google accounts and devices associated with individuals who moved, on January 6, 2021, from an area at or near the Ellipse to an area encompassing the United States Capitol building. His/her testimony will describe and explain the resulting graphical representations of that data, and it will aid the jury in understanding the movements of individuals toward the Capitol area during and after the defendant’s speech at the Ellipse.

Jack Smith is not only targeting Donald Trump’s communications from his time as commander-in-chief, while attempting to undercut his claims of executive immunity, however. He is also targeting millions of Trump supporters.

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In late November, it was revealed that DOJ prosecutors collected a massive collection of data about the former president’s social media activity—including information on every account that liked, followed, or retweeted him.

An extensively redacted search warrant was revealed as a result of a judge’s ruling on November 17, which came after a consortium of media organizations filed an application in August for the warrant and other data to be made public.

Twitter appears to have provided the DOJ with vast volumes of material under compulsion.

Special Counsel Jack Smith sought, and appears to have gotten, information on all users Trump followed, unfollowed, muted, unmuted, blocked, or unblocked, as well as all users who followed, unfollowed, muted, unmuted, blocked, or unblocked Trump.

Smith also requested that Twitter provide information on “all lists of Twitter users who have favorited or retweeted tweets posted by [Trump], as well as all tweets that include the username associated with the account (i.e., ‘mentions’ or ‘replies’).”

The DOJ’s request also wanted information on Trump’s geolocation, private messages, search history, and contact information.

The warrant’s release comes after Twitter objected to the search warrant as well as an accompanying gag order, claiming that the gag order violated the company’s First Amendment right to communicate with Trump and that Trump may have legal standing to use executive privilege to block the warrant.

Twitter’s challenge to the DOJ was eventually unsuccessful, with Obama-appointed District Judge Beryl Howell fining the firm $350,000 in February for failing to fulfill a deadline for complying with the order. All of Howell’s rulings were upheld by an appeals court.

Even more chilling, not only did Jack Smith seek to violate Donald Trump’s reasonable expectation of privacy in search for a crime, he wanted to do it in secret.

“Based on ex parte affidavits, the district court found probable cause to search the Twitter account for evidence of criminal offenses. Moreover, 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,’” the appeals court noted.

It is now abundantly clear that Special Counsel Jack Smith not only violated Donald Trump’s individual rights, as well as that of millions of Twitter users, in their reasonable expectation of privacy, but also his executive privilege as a President of the United States.

By Melinda Davies
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