Judge Florence Pan, nominated by President Biden to the US Court of Appeals for the DC Circuit, wrote a unanimous opinion joined by Biden Judge Michelle Childs that rejected a First Amendment claim by Twitter against a confidential search warrant of information in Donald Trump’s Twitter account as part of Special Counsel Jack Smith’s investigation of Trump. The ruling also upheld a sanction against Twitter for its delayed compliance with the warrant. The decision in In re Sealed Case was issued under seal on July 18, 2023, and a redacted version deleting confidential information was released on August 9, 2023
What Happened that Led to the DC Circuit Decision?
As part of the investigation that has led to the indictment of Donald Trump concerning his alleged “interference with the peaceful transfer of power following the 2020 presidential election,” Special Counsel Jack Smith obtained on January 17, 2023 a search warrant that directed Twitter to produce tweets and other information from Donald Trump’s Twitter account. The information was to be provided by January 27.
Smith also applied for and received a nondisclosure order from the district court that prohibited Twitter from disclosing the existence or contents of the warrant to Trump or anyone for a specified period. Judge Beryll Howell, who issued the order, found that there were “reasonable grounds to believe” that disclosing the warrant to Trump would “seriously jeopardize” the investigation by giving him an opportunity to “destroy evidence, change patterns of behavior, or notify confederates.” As the Department of Justice explained during the Bush Administration, such delayed notice search warrants are a “vital and time-honored tool” used by law enforcement in sensitive cases.
Four days after the information was due, on February 1, Twitter objected to producing any information because it claimed that the confidentiality order violated its First Amendment rights to communicate with Trump. The government disagreed, and also filed a motion to hold Twitter in contempt for failing to comply with the warrant.
At a hearing on February 7, Judge Howell rejected the claim that she must first decide the First Amendment issue and found Twitter in contempt for failing to comply with the warrant. Among her findings, Howell determined that additional delays would “increase the risk that evidence would be lost or destroyed” and “jeopardize the government’s ability to bring any prosecution in a timely fashion.” Judge Howell gave Twitter the opportunity to purge the contempt finding by producing the requested information by 5 pm on February 7, which its counsel stated it was “prepared” to do, and set an escalating schedule of fines for each day thereafter that Twitter failed to produce all the requested information.
After an additional hearing and briefing, Twitter finally produced the requested information by February 10. Under the fine schedule, which Twitter did not initially object to, it owed a $350,000 fine. After briefing and an additional hearing, Judge Howell also issued an opinion in early March rejecting Twitter’s First Amendment objection to the confidentiality order. She found that the temporary non-disclosure order was a “narrowly tailored” method to “protect the compelling interest of safeguarding the integrity and secrecy of an ongoing criminal investigation.” Twitter appealed.
How did Judge Pan and the DC Circuit Rule and Why is it Important?
Judge Pan and the DC Circuit panel affirmed Judge Howell’s rulings. Although parts of the opinion remain redacted, the court publicly released a 34 page opinion in August in which it carefully considered and rejected Twitter’s arguments on the merits.
Initially, with respect to the First Amendment claim, Judge Pan agreed to apply strict scrutiny to the non-disclosure order, even though other courts have applied less demanding standards. Based on a careful review of the record and past precedent, she found that the government had a “compelling interest” for the order: “preserving the integrity” and “maintaining the secrecy” of its ongoing criminal investigation. The government’s interest was “particularly strong,” she explained, because of the investigation’s national security implications and the district judge’s findings concerning the risk of “evidence tampering, witness intimidation, or other obstructive acts.”
In accordance with case law, Judge Pan also concluded that the order was “narrowly tailored” to advance the government’s interest by the “least restrictive means.” The order was initially for only 180 days, and as later modified, Twitter was allowed to disclose the existence and contents of the warrant, and required only to withhold the identity of the agent assigned to the investigation. It pertained only to information learned by Twitter through involvement in the government investigation. And Twitter failed to offer any alternative that would have accomplished the government’s goals “equally or almost equally effectively.” Judge Pan thus determined that the non-disclosure order “withstood strict scrutiny” and was valid under the First Amendment,
Judge Pan’s opinion also affirmed Judge Howell’s contempt sanction because she had carefully “followed the procedure” previously specified by the DC Circuit. Judge Howell gave Twitter a full opportunity to be heard, found that Twitter had disobeyed a “clear and unambiguous” warrant, gave it the opportunity to object to the sanctions formula, and determined that it “could meet” the production schedule. Even assuming that a good faith defense was available, moreover, Judge Pan found that Twitter had failed to meet the standard of showing that it “took all reasonable steps within [its] power to comply with the court’s order.” The ultimate $350,000 sanction, moreover, was “not unreasonable” in light of “Twitter’s $40 billion dollar valuation” and the goal of promptly securing its compliance with the warrant. Overall, Judge Pan concluded, the district court “acted reasonably” and “did not abuse its discretion” in imposing the contempt sanction.
The DC Circuit decision was clearly important to allowing the investigation to proceed promptly and lead to the indictment decision. The indictment specifically refers to information from Trump’s Twitter account in detailing his misconduct. Accountability for Trump and his allies is a very important goal, but it is equally important that the judges who consider the issues raised behave in a fair-minded and impartial fashion. That is precisely what happened in this case. Indeed, Judge Pan specifically rejected some arguments by the special counsel who sought to dismiss part of the appeal on mootness or other grounds. The ruling also serves as another reminder of the importance of promptly confirming fair-minded Biden nominees like Judge Pan and Childs to our federal courts.