In re: Search of Information Stored at Twitter, Inc. [ORDER IN SLIP OPINION FORMAT]

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed January 16, 2024

No. 23-5044

IN RE: THE SEARCH OF INFORMATION STORED AT PREMISES
CONTROLLED BY TWITTER, INC.

Appeal from the United States District Court
for the District of Columbia
(No. 1:23-sc-00031)

On Petition for Rehearing En Banc

Before: SRINIVASAN, Chief Judge; HENDERSON*, MILLETT,
PILLARD, WILKINS, KATSAS*, RAO*, WALKER*, CHILDS,
PAN, and GARCIA, Circuit Judges.

ORDER

Upon consideration of appellant’s petition for rehearing
en banc, the response thereto, the amicus curiae brief filed by
Electronic Frontier Foundation in support of rehearing en
banc, and the absence of a request by any member of the court
for a vote, it is

ORDERED that the petition be denied.

Per Curiam
 2

FOR THE COURT:
Mark J. Langer, Clerk

BY: /s/
Daniel J. Reidy
Deputy Clerk

* A statement by Circuit Judge Rao, joined by Circuit Judges
Henderson, Katsas, and Walker, respecting the denial of the
petition for rehearing en banc, is attached.
 RAO, Circuit Judge, statement respecting the denial of
rehearing en banc, joined by HENDERSON, KATSAS, and
WALKER, Circuit Judges: 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 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. “[A]ny 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. United States v.
Haldeman, 559 F.2d 31, 76 (D.C. Cir. 1976) (en banc) (cleaned
up). 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.

The options at this juncture are limited. Once informed of
the search, President Trump could have intervened to protect
claims of executive privilege, but did not, and so these issues
are not properly before the en banc court. Nonetheless,
executive privilege is vital to the energetic and independent
exercise of the President’s Article II authority and to the
separation of powers. While the privilege may yield to the
needs of a criminal investigation, in making this determination,
 2
the Supreme Court and this circuit have always carefully
balanced executive privilege against other constitutional
interests. By contrast, the court here permitted a special
prosecutor to avoid even the assertion of executive privilege by
allowing a warrant for presidential communications from a
third party and then imposing a nondisclosure order. Because
these issues are likely to recur, I write separately to explain how
the decisions in this case break with longstanding precedent
and gut the constitutional protections for executive privilege.

I.

As part of the criminal investigation into President
Trump’s alleged efforts to interfere with the peaceful transfer
of power after the 2020 presidential election, the Special
Counsel obtained a search warrant for the President’s Twitter
account. After President Trump left office, the contents of his
Twitter account from his time in office were deposited with the
National Archives and Records Administration. Although an
Executive Branch agency held the account data, the Special
Counsel admitted he did not seek the account from the
Archives because a request to the Archives “would trigger
notice to the former President under” the Presidential Records
Act, Pub. L. No. 95-591, 92 Stat. 2523 (1978) (codified at 44
U.S.C. §§ 2201 et seq.). To avoid the notice required by law,
the Special Counsel instead directed a search warrant at Twitter
and obtained an order prohibiting Twitter from disclosing the
warrant to anyone, including President Trump or his agents.
Twitter ultimately complied with the warrant, releasing the
requested information. See In re Sealed Case (“Twitter”), 77
F.4th 815, 821 (D.C. Cir. 2023). The release included 32 direct
messages sent by President Trump. He was informed of the
warrant and disclosure only months later. See id. at 825.
 3
The district court rejected Twitter’s First Amendment
challenge to the nondisclosure order. The court held the order
was a narrowly tailored means to serve the compelling
government interest in maintaining the secrecy of the Special
Counsel’s investigation. The court reasoned that disclosing the
search warrant to President Trump or his representatives would
jeopardize the criminal investigation. A panel of this court
affirmed the district court in full. Id. at 836.

The First Amendment and other arguments Twitter
advances in seeking rehearing en banc are important and may
warrant further review. I write, however, to highlight the
substantial executive privilege issues implicated by this case.
While a Twitter account primarily consists of public tweets, it
may also include some private material, such as direct
messages between users, drafts, and personal metadata. In fact,
the material produced by Twitter included several dozen direct
messages written by a sitting President. The district court
afforded no opportunity for the former President to invoke
executive privilege before disclosure, and this court 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.

II.

Executive privilege is “fundamental to the operation of
Government and inextricably rooted in the separation of
powers under the Constitution.” United States v. Nixon
(“Nixon”), 418 U.S. 683, 708 (1974). The privilege flows from
the vesting of all executive power in a single President and
“derives from the supremacy of the Executive Branch within
its assigned area of constitutional responsibilities.” Nixon v.
Adm’r of Gen. Servs. (“GSA”), 433 U.S. 425, 447 (1977). The
 4
confidentiality of presidential communications is critical to the
energetic exercise of executive power and to the independence
of the Executive Branch. It is well established that such
privilege extends beyond a President’s time in office. Id. at
448–49.

When exercising the judicial obligation to determine the
validity and scope of executive privilege, the Supreme Court
and this circuit have recognized certain implementing rules for
adjudicating privilege claims. See Nixon, 418 U.S. at 713–14;
Nixon v. Sirica, 487 F.2d 700, 714–18 (D.C. Cir. 1973) (en
banc). Faced with a subpoena or other request for documents,
the President may invoke executive privilege, and upon such
invocation, the documents become “presumptively privileged.”
Nixon, 418 U.S. at 713; see also In re Sealed Case (“Espy”),
121 F.3d 729, 744 (D.C. Cir. 1997). Courts must afford
presidential materials this presumption even in the absence of
an assertion of executive privilege. See Haldeman, 559 F.2d at
76–77; cf. Cheney v. U.S. District Court for D.C., 542 U.S. 367,
391 (2004) (correcting the lower court’s “mistaken assumption
that the assertion of executive privilege is a necessary
precondition to” considering separation of powers objections).

While the privilege is not absolute, it may “be defeated
only by a strong showing of need.” Senate Select Comm. on
Presidential Campaign Activities v. Nixon (“Senate Select”),
498 F.2d 725, 730 (D.C. Cir. 1974) (en banc). For example,
when the special prosecutor sought President Nixon’s tapes for
a criminal investigation, the Court required the prosecutor to
show a “demonstrated, specific need for evidence” and to prove
that the material was “essential to the justice of the [pending
criminal] case.” Nixon, 418 U.S. at 713 (quoting United States
v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (Marshall,
C.J.)). And while the privilege yielded in that case, we held that
a congressional committee subpoenaing a set of President
 5
Nixon’s tapes had failed to show the material was
“demonstrably critical to the responsible fulfillment of [its]
functions.” Senate Select, 498 F.2d at 731.

Moreover, as a practical matter, we have emphasized that
determinations regarding executive privilege must occur case-
by-case and with careful attention to each document. While the
privilege may yield to other important constitutional interests,
any disclosure must be limited to the materials relevant to those
needs. See Espy, 121 F.3d at 761 (requiring the district court to
specifically identify the privileged information required to
meet the demonstrated need and limiting disclosure only to
those documents or parts of documents); Nixon, 418 U.S. at
714–16 (authorizing the release of only relevant and admissible
portions of President Nixon’s tapes and emphasizing the rest
“must be excised” and “restored to its privileged status”).

Our established procedures for evaluating executive
privilege comport with Chief Justice Marshall’s admonition
that “[i]n no case of this kind would a court be required to
proceed against the president as against an ordinary
individual.” Burr, 25 F. Cas. at 192. When presidential
privileges are implicated, the Supreme Court and this court
have recognized the important and delicate constitutional
interests at stake and carefully weighed the privilege against
other governmental interests.

A.

In every case involving access to presidential
communications, the President has been able to litigate claims
of executive privilege, or the court has denied access to the
materials. 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. Approval of the
 6
Special Counsel’s search warrant and nondisclosure order, with
no consideration for the confidentiality of presidential
materials, constitutes a “significant departure from historical
practice.”1 Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031
(2020). This unprecedented approach is mistaken for at least
three reasons.

First, neither the district court nor this court explained why
presidential privilege may be circumvented with the simple
expediency of a search warrant and nondisclosure order.
Indeed, this extraordinary approach cannot be squared with the
vital constitutional protection for executive privilege. In every
prior case involving materials that might be covered by
presidential privilege, the President has been allowed to raise
the privilege claim before disclosure. See, e.g., Nixon, 418 U.S.
at 714–16 & n.21 (requiring the President have an opportunity

1
The Supreme Court has twice in recent years repudiated a decision
of this court for failing to recognize serious separation of powers
concerns implicated by novel intrusions on the presidency. When a
committee of the House of Representatives subpoenaed President
Trump’s accountants for his tax returns, the Court explained the
unprecedented nature of the dispute, identified the threats it posed to
the Office of the President, and held that our court “did not take
adequate account of” the “special concerns regarding the separation
of powers.” Mazars, 140 S. Ct. at 2036. And when this court
suggested that a sitting President may override the executive
privilege claims of a former President, the Supreme Court stated that
this was “nonbinding dicta” because the “circumstances [in which] a
former President may obtain a court order preventing disclosure of
privileged records from his tenure in office, in the face of a
determination by the incumbent President to waive the privilege, are
unprecedented and raise serious and substantial concerns.” Trump v.
Thompson, 142 S. Ct. 680, 680 (2022) (denial of application for stay
of mandate and injunction pending review); see also id. at 680–81
(Kavanaugh, J., statement respecting denial of application for stay).
 7
to raise privilege before enforcement of a subpoena); Dellums
v. Powell, 642 F.2d 1351, 1364 (D.C. Cir. 1980) (holding the
former President “must be given an opportunity to present his
particularized claims of Presidential privilege”); see also
United States v. Reynolds, 345 U.S. 1, 8 (1953) (emphasizing
the court’s duty to determine the appropriateness of an
executive privilege claim “without forcing a disclosure of the
very thing the privilege is designed to protect”). By contrast,
here the former President was not given an opportunity to assert
privilege over communications made during his time in office.
The warrant and nondisclosure order were an end-run around
executive privilege, ignoring the need to “afford Presidential
confidentiality the greatest protection consistent with the fair
administration of justice.” Nixon, 418 U.S. at 715.

Second, the process employed by the Special Counsel and
sanctioned by the district court evades the meticulous
protections for presidential privilege established by Congress
in the Presidential Records Act and reflected in traditional
Executive Branch practice. The Act requires notice to a former
President before the disclosure of any potentially privileged
material. See 44 U.S.C. § 2206(3). The Archivist must
“promptly notif[y]” a former President if his records are
subpoenaed or otherwise sought for “any civil or criminal
investigation.” 36 C.F.R. § 1270.44(a)(1), (c); cf. GSA, 433
U.S. at 444 (upholding the constitutionality of an earlier
presidential records statute in part because the statute provided
an opportunity to assert executive privilege). After notice, the
former President may assert privilege, and if the Archivist
decides to release material over such a claim, the former
President may seek judicial review of his “rights or privileges.”
44 U.S.C. § 2204(e). Moreover, by Executive Order, when a
former President raises a privilege claim, the Archivist must
consult with the Executive Branch and “abide by any
instructions given him by the incumbent President or his
 8
designee unless otherwise directed by a final court order.”
Exec. Order No. 13,489, 74 Fed. Reg. 4669, 4670 (Jan. 21,
2009). And before disclosing any presidential records, the
Archivist must provide 30-day notice to the former President,
allowing him to seek judicial review. Id.

Both the Presidential Records Act and longstanding
Executive Branch practice include: (1) notice to a former
President before disclosure of presidential records; (2) an
opportunity to assert executive privilege; (3) consideration by
the incumbent President of privilege issues; and (4) judicial
review of claims of executive privilege before disclosure.
These procedures effectuate the President’s constitutional
privilege—they are part of the “traditional way[s] of
conducting government” between the branches. Mazars, 140
S. Ct. at 2035 (cleaned up).

Nonetheless, the Special Counsel acknowledged
deliberately circumventing notice to the former President by
going to Twitter for the communications, rather than to the
National Archives. But as the Supreme Court has admonished,
we cannot “sidestep constitutional requirements any time a
President’s information is entrusted to a third party[.] … The
Constitution does not tolerate such ready evasion; it deals with
substance, not shadows.” Id. (cleaned up).

Third, the judicial decisions here provide less protection to
executive privilege claims than to privilege claims raised by
Members of Congress under the Speech or Debate Clause.
When the Executive searches a place where legislative
materials are likely to exist—such as a Member’s office or cell
phone—a Member must be able to assert the Clause’s
protections before any materials are disclosed. See United
States v. Rayburn House Off. Bldg., 497 F.3d 654, 662–63
(D.C. Cir. 2007); see also In re Sealed Case (“Perry”), 80 F.4th
 9
355, 366 (D.C. Cir. 2023). By contrast, the district court
allowed disclosure of presidential communications to the
Special Counsel without notice to the former President or any
opportunity to assert executive privilege. This disparity makes
little sense given the constitutional foundation of executive
privilege, which derives from the “President’s unique powers
and profound responsibilities.” Espy, 121 F.3d at 749; see also
Nixon, 418 U.S. at 711–12.

The warrant and nondisclosure order sought private
presidential communications within President Trump’s Twitter
account. In these circumstances, the district court should have
recognized that such material was “presumptively privileged,”
allowed the former President an opportunity to assert claims of
executive privilege, and assessed any privilege claim against
the needs of the Special Counsel’s investigation.

B.

To bypass the procedures established by Congress,
longstanding Executive Branch practice, and Supreme Court
precedent, the Special Counsel asserted that the search warrant
had to be executed without notice to the former President
because notice would endanger the secrecy of the Special
Counsel’s investigation and give President Trump an
opportunity to destroy evidence and intimidate witnesses. The
interests of a criminal investigation may ultimately override a
President’s claim of executive privilege, but the clear
throughline of our cases is that presidential communications
are “presumptively privileged,” and the court must balance any
countervailing constitutional interests. Cf. Nixon, 418 U.S. at
708–13; Haldeman, 559 F.2d at 76–77. Neither the Supreme
Court nor this court has ever suggested that the interests of
criminal justice can thwart even the consideration of
presidential privilege.
 10
The Special Counsel rebutted Twitter’s efforts to raise
executive privilege concerns by arguing that there was “no
plausible reason to conclude that the former
President … would have used Twitter’s direct-message
function to carry out confidential communications.” But it is
widely known that President Trump used his Twitter account
to conduct official business. This is precisely why the contents
of the account were deposited with the National Archives.
Because some functions of a Twitter account, such as direct
messages, are private and confidential, it is entirely plausible
that the President’s account may have contained privileged
material. In fact, Twitter vigorously maintained this possibility.
The district court dismissed the concerns about executive
privilege and also questioned the company’s motives in raising
claims on behalf of President Trump.2 Under longstanding
precedent, however, the Special Counsel should not have been
allowed to evade an assertion of presidential privilege simply
by issuing the warrant to a third party—“it is, after all, the
President’s information.” Mazars, 140 S. Ct. at 2035.

Furthermore, the Special Counsel maintained that there
was not even a colorable claim of executive privilege because
the warrant for President Trump’s Twitter account came from
the Executive Branch and therefore could not implicate the
separation of powers. This claim flies in the face of Supreme
Court and circuit precedent. To begin with, the Court has held
that a former President may assert executive privilege,
including against disclosure within the Executive Branch. See
GSA, 433 U.S. at 448–49. In addition, there is no suggestion
that the incumbent President waived executive privilege for
this investigation, and the Special Counsel maintains a studied

2
In just one of several examples, the district court asked Twitter’s
lawyers if they were litigating the case only because “the CEO wants
to cozy up with the former President.”
 11
“independence” from the Department of Justice, the Attorney
General, and the President.3 And finally, the Supreme Court
has recently recognized that a conflict between a former and
incumbent President over executive privilege raises “serious
and substantial concerns.” Trump v. Thompson, 142 S. Ct. 680,
680 (2022) (denial of application for stay of mandate and
injunction pending review). The Court’s statement forecloses
the Special Counsel’s claim that, in effect, any Executive
Branch official can dodge a former President’s claim of
executive privilege without judicial review.

Nothing in the foregoing precludes the possibility that, if
the former President had asserted executive privilege, the
Special Counsel could have surmounted it by demonstrating a
“specific need for evidence in a pending criminal trial.” Nixon,
418 U.S. at 713. But the Court and this circuit have always
undertaken that balance with meticulous attention to the
constitutional privilege protecting the President and his Office.

***

Before this case, presidential materials were
presumptively privileged, even in the absence of an assertion
of privilege. Such presumption recognized the importance of
confidentiality to the effective and energetic discharge of the
President’s duties. The presumption also limited the role of the
courts when called on to balance executive privilege against

3
See Press Release No. 22-1238, U.S. Dep’t of Just., Statement of
Special Counsel Jack Smith (Nov. 18, 2022) (stating “I intend to
conduct the assigned investigations, and any prosecutions that may
result from them, independently”); see also Press Release No. 22-
1237, U.S. Dep’t of Just., Appointment of a Special Counsel (Nov.
18, 2022) (“[T]he Special Counsel will not be subject to the day-to-
day supervision of any [DOJ] official.”).
 12
other constitutional interests. Without a word, the district court
and our court have flipped the presumption.

The absence of a presumptive privilege particularly
threatens the Chief Executive when, as here, a third party holds
presidential communications. See Mazars, 140 S. Ct. at 2035.
And to be sure it aggrandizes the courts, which will have the
power to determine whether executive privilege will be
considered before its breach. Without a presumption for
executive privilege, new questions will invariably arise,
particularly because nothing in the panel’s opinion is limited to
a former President. 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? And how might Congress benefit from this
precedent when it seeks to subpoena presidential materials
from third parties in an investigation or impeachment inquiry?

Not every “wolf comes as a wolf.” Morrison v. Olson, 487
U.S. 654, 699 (1988) (Scalia, J., dissenting). Perhaps the threat
here was hard to spot. Nevertheless, judicial disregard of
executive privilege undermines the Presidency, not just the
former President being investigated in this case.