Last year, federal courts in Washington, D.C. forced Elon Musk’s X Corp. to fork over reams of data from Donald Trump’s account to special counsel Jack Smith without telling Trump and giving him a chance to intervene.
Now the company is urging the Supreme Court to prevent such a scenario from unfolding again, a demand that could radically alter the way criminal investigators deploy secret search warrants and subpoenas for sensitive information.
X Corp. is asking the justices to consider whether social media services can be forced to share data about their users with government investigators while being barred from informing those users about the requests.
Trump’s material, the company noted, might have been subject to claims of executive privilege. But other users might have their own privileges to invoke, from attorneys to journalists to spouses.
In the case of Trump’s account, a federal district judge in Washington D.C., Beryl Howell, rejected X Corp.’s protestations and endorsed a so-called “nondisclosure order” that barred the company from informing Trump about Smith’s subpoena. She reasoned that prosecutors had presented evidence that informing Trump could endanger the information and cause risks to Smith’s probe.
In February 2023, Howell held the company, which Musk had recently purchased, in contempt for dragging its feet on producing the material. The judge fined the company $350,000. And she wondered aloud whether Musk was impeding Smith’s investigation to ingratiate himself to the former president.
The D.C. Circuit Court of Appeals supported Howell’s decision, but the court’s four conservatives wrote a blistering opinion criticizing the ruling for permitting prosecutors to evade a potential executive privilege fight.
X Corp., represented by prominent attorneys from WilmerHale, contended that the D.C. courts’ decisions failed to protect the company’s First Amendment right to communicate with its customers.
Smith has already obtained voluminous data from Trump’s account, a component of his effort to pinpoint Trump’s actions in the key weeks leading up to the Jan. 6 attack on the Capitol. But X Corp. says the legal issue at the heart of its Supreme Court petition is likely to recur. In fact, the company is mounting a similar battle against nondisclosure orders in an investigation that was made public earlier this year by Chief U.S. District Judge James Boasberg, who similarly ruled against the company.
Amanda Smith is a dedicated U.S. correspondent with a passion for uncovering the stories that shape the nation. With a background in political science, she provides in-depth analysis and insightful commentary on domestic affairs, ensuring readers are well-informed about the latest developments across the United States.
