DC Circuit Court of Appeals Judges Excoriate Previous Executive Privilege Ruling & Scheme of Jack Smith

By Sundance

In a 14-page opinion and ruling today [See PDF] four judges from the DC Circuit Court of Appeals deconstruct the previous ruling from their own court, as well as the lower DC judge who gave Special Counsel Jack Smith access to President Trump’s Twitter account data, and enforced a non-disclosure order.

There are multiple layers to this story, but the substantive part is the scheme and the construct of how Lawfare took place.  There’s no way this was coincidental, and I’ll explain why.

There are 7 members on the full DC Circuit Court of Appeals. When the Twitter case to gain access to President Trump communication came to the appellate level, all three of the most left-wing judges were assigned to hear the appeal.

An “en banc” review would have included all 7 DC Circuit Court of Appeal members.  However, the en banc review was made moot by the release of the information. The release was done with the use of a non-disclosure order, hiding the ruling in secrecy and keeping President Trump from knowing about it.

Once the other four members of the court eventually found out about the case and the ramifications for ‘executive privilege’, their opinion lambasting their own court is released.

“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.”

The Circuit Court justices note Jack Smith could have gone to the National Archives for the information, as they held the same set of documents and information.  However, Smith didn’t want to go that route because the National Archives would inform President Trump, and provide him the ability to assert executive privilege over the requested Direct Messages.

Jack Smith did not want President Trump to know the prosecution was looking through his Twitter metadata and personal communication, so they went to district court under seal to file their search warrants in secrecy; then banned Twitter (the third party) from telling President Trump about it. 

The four judges from the DC Circuit Court of Appeals are furious at the other three members of the court who went along with this precedent setting usurpation of authority.

President Trump could not appeal any part of this process because he was unaware it was taking place. In essence, a star-chamber of secrecy was established, and the majority on DC Circuit Court of Appeals is not happy about it.

Jack Smith gained access after Twitter lost the 3-judge Circuit Court appeal decision. So, an en banc full 7-member ruling is essentially moot.  The information was released, and Smith had access without President Trump or the White House having any chance to assert executive privilege.

“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.”  - Read PDF

The ruling provides no remedy other than public scrutiny and perhaps fuel for Florida Judge Aileen Cannon, who already has Special Counsel Jack Smith on his heels after numerous rulings in the Mar-a-Lago documents case.

What the publicity does is (once again) highlight to everyone just how politically motivated all of this aforementioned action is. Also, what are the odds of the random 3-judge panel to approve it? The DC Circuit Court itself seems to imply this was a structured outcome, which is even more infuriating to the court majority.