Donald Trump

Last year, special counsel Jack Smith asked X (formerly Twitter) to hand over Donald Trump’s direct messages from his presidency without telling Trump. Refusing to comply, X spent the past year arguing that the gag order was an unconstitutional prior restraint on X’s speech and an “end-run” around a record law shielding privileged presidential communications.

Under its so-called free speech absolutist owner Elon Musk, X took this fight all the way to the Supreme Court, only for the nation’s highest court to decline to review X’s appeal on Monday.

It’s unclear exactly why SCOTUS rejected X’s appeal, but in a court filing opposing SCOTUS review, Smith told the court that X’s “contentions lack merit and warrant no further review.” And SCOTUS seemingly agreed.

The government had argued that its nondisclosure order was narrowly tailored to serve a compelling interest in stopping Trump from either deleting his DMs or intimidating witnesses engaged in his DMs while he was in office.

At that time, Smith was publicly probing the interference with a peaceful transfer of power after the 2020 presidential election, and courts had agreed that “there were ‘reasonable grounds to believe’ that disclosing the warrant” to Trump “‘would seriously jeopardize the ongoing investigation’ by giving him ‘an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates,” Smith’s court filing said.

Under the Stored Communications Act (SCA), the government can request data and apply for a nondisclosure order gagging any communications provider from tipping off an account holder about search warrants for limited periods deemed appropriate by a court, Smith noted. X was only prohibited from alerting Trump to the search warrant for 180 days, Smith said, and only restricted from discussing the existence of the warrant.

As the government sees it, this reliance on the SCA “does not give unbounded, standardless discretion to government officials or otherwise create a risk of ‘freewheeling censorship,'” like X claims. But the government warned that affirming X’s appeal “would mean that no SCA warrant could be enforced without disclosure to a potential privilege holder, regardless of the dangers to the integrity of the investigation.”

Court finds X alternative to gag order “unpalatable”

X tried to wave a red flag in its SCOTUS petition, warning the court that this was “the first time in American history” that a court “ordered disclosure of presidential communications without notice to the President and without any adjudication of executive privilege.”

The social media company argued that it receives “tens of thousands” of government data requests annually—including “thousands” with nondisclosure orders—and pushes back on any request for privileged information that does not allow users to assert their privileges. Allowing the lower court rulings to stand, X warned SCOTUS, could create a path for government to illegally seize information not just protected by executive privilege, but also by attorney-client, doctor-patient, or journalist-source privileges.

X’s “policy is to notify users about law enforcement requests ‘prior to disclosure of account information’ unless legally ‘prohibited from doing so,'” X argued.

X suggested that rather than seize Trump’s DMs without giving him a chance to assert his executive privilege, the government should have designated a representative capable of weighing and asserting whether some of the data requested was privileged. That’s how the Presidential Records Act (PRA) works, X noted, suggesting that Smith’s team was improperly trying to avoid PRA compliance by invoking SCA instead.

But the US government didn’t have to prove that the less-restrictive alternative X submitted would have compromised its investigation, X said, because the court categorically rejected X’s submission as “unworkable” and “unpalatable.”

According to the court, designating a representative placed a strain on the government to deduce if the representative could be trusted not to disclose the search warrant. But X pointed out that the government had no explanation for why a PRA-designated representative, Steven Engel—a former assistant attorney general for the Office of Legal Counsel who “publicly testified about resisting the former President’s conduct”—”could not be trusted to follow a court order forbidding him from further disclosure.”

“Going forward, the government will never have to prove it could avoid seriously jeopardizing its investigation by disclosing a warrant to only a trusted representative—a common alternative to nondisclosure orders,” X argued.

In a brief supporting X, attorneys for the nonprofit digital rights group the Electronic Frontier Foundation (EFF) wrote that the court was “unduly dismissive of the arguments” X raised and “failed to apply exacting scrutiny, relieving the government of its burden to actually demonstrate, with evidence, that these alternatives would be ineffective.”

Further, X argued that none of the government’s arguments for nondisclosure made sense. Not only was Smith’s investigation announced publicly—allowing Trump ample time to delete his DMs already—but also “there was no risk of destruction of the requested records because Twitter had preserved them.” On top of that, during the court battle, the government eventually admitted that one rationale for the nondisclosure order—that Trump posed a supposed “flight risk” if the search warrant was known—”was implausible because the former President already had announced his re-election run.”

X unsuccessfully pushed SCOTUS to take on the Trump case as an “ideal” and rare opportunity to publicly decide when nondisclosure orders cross the line when seeking to seize potentially privileged information on social media.

In its petition for SCOTUS review, X pointed out that every social media or communications platform is bombarded with government data requests that only the platforms can challenge. That leaves it up to platforms to figure out when data requests are problematic, which they frequently are, as “the government often agrees to modify or vacate them in informal negotiations,” X argued.

But when the government refuses to negotiate, as in the Trump case, platforms have to decide if litigation is worth it, risking sanctions if the court finds the platform in contempt, just as X was sanctioned $350,000 in the Trump case. If a less restrictive alternative was determined appropriate by the courts, such as appointing a trusted representative, platforms would never have had to guess when data requests threaten to expose their users’ privileged information, X argued.

According to X, another case like this won’t come around for decades, where court filings wouldn’t have to be redacted and a ruling wouldn’t have to happen behind closed doors.

But the government seemingly persuaded the Supreme Court to decline to review the case, partly by arguing that X’s challenge to its nondisclosure order was moot. Responding to X’s objections, the government had eventually agreed to modify the nondisclosure order to disclose the warrant to Trump, so long as the name of the case agent assigned to the investigation was redacted. So X’s appeal is really over nothing, the government suggested.

Additionally, the government argued that “this case would not be an appropriate vehicle” for SCOTUS’ review of the question X raised because “no executive privilege issue actually existed in this case.”

“If review of the underlying legal issues were ever warranted, the Court should await a live case in which the issues are concretely presented,” Smith’s court filing said.

X is likely deflated by SCOTUS’ call declining to review X’s appeal. In its petition, X claimed that the court system risked providing “a blueprint for prosecutors who wish to obtain potentially privileged materials” and “this end-run will not be limited to federal prosecutors,” X warned. State prosecutors will likely also be emboldened to do the same now that the precedent has been set, X predicted.

In their brief supporting X, EFF lawyers noted that the government already has “far too much authority to shield its activities from public scrutiny.” By failing to prevent nondisclosure orders from restraining speech, the court system risks making it harder to “meaningfully test these gag orders in court,” EFF warned.

“Even a meritless gag order that is ultimately voided by a court causes great harm while it is in effect,” EFF’s lawyers said, while disclosure “ensures that individuals whose information is searched have an opportunity to defend their privacy from unwarranted and unlawful government intrusions.”