Last summer, a D.C. Circuit panel ruled that a district court properly held Twitter in contempt for its delay in responding to a search warrant directing it to produce information relating to Donald Trump’s Twitter account. On Tuesday, the D.C. Circuit denied en banc review of the panel decision.
Judge Neomi Rao, joined by three of her colleagues, did not dissent from her court’s denial of en banc review. But she wrote a noteworthy opinion (attached to the denial order) that highlighted “consequential and novel questions about executive privilege and the balance of power between the President, Congress, and the courts” that were “looming in the background of the case” and that, she explains, did not receive proper attention from the district court and the panel.
Here are excerpts from the opening of her opinion (my underlining):
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.
And from her closing:
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 other constitutional interests. Without a word, the district court and our court have flipped the presumption….
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.