Appeals court rejects X challenge to special counsel secret demand for Trump Twitter data

A federal appeals court on Tuesday denied X Corp.’s latest challenge to a nondisclosure order it received as part of special counsel Jack Smith’s search warrant for former President Donald Trump‘s Twitter account.

Smith first served X, formerly known as Twitter, with a search warrant for Trump’s account data in January 2023, part of a criminal investigation into Trump’s attempt to overturn his 2020 election loss to President Joe Biden.

At the same time, Smith obtained a nondisclosure order barring X from disclosing the search warrant to Trump or anyone else.

In granting Smith’s request to keep the warrant a secret, a federal district court said it was reasonable to believe disclosure of the request would “result in destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.”

X initially refused to comply with the warrant, and the district court in Washington, D.C., held the company in contempt and fined it $350,000. X ultimately turned over the data Smith was seeking.

In August, the U.S. Court of Appeals for the District of Columbia Circuit rejected X’s first appeal of the order.

In September, X asked for a re-hearing before the appeals court’s entire slate of judges — a move known as an “en banc” re-hearing — arguing that the previous decision was made in error.

Put before 11 judges on the appeals court, X’s challenge was again denied in Tuesday’s order.

But four of the 11 judges, including three who were appointed by Trump, strongly criticized the courts that had permitted Smith to get the search warrant in secret.

“We should not have endorsed this gambit,” read a statement attached to the order denying X’s bid for a re-hearing.

“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,” read the statement penned by Judge Neomi Rao.

Smith’s efforts “obscured and bypassed any assertion of executive privilege and dodged the careful balance Congress struck in the Presidential Records Act,” argued Rao.

A spokesman for Smith declined to comment on the court filing. Seth Waxman, a lead attorney representing X in the matter, did not immediately respond to CNBC’s request for comment.

Trump nominated Rao to the appeals court in 2019. Her statement was joined by Judges Gregory Katsas and Justin Walker, who were also nominated by Trump, and Judge Karen LeCraft Henderson, who was nominated in 1990 by President George H.W. Bush.