Joint Appendix Sealed Case

USCA Case #23-5044 Document #2017106 Filed: 09/15/2023 Page 1 of 403
FILED UNDER SEAL
ORAL ARGUMENT SCHEDULED FOR MAY 19, 2023

No. 23-5044
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
IN RE SEALED CASE
On Appeal from the United States District Court

for the District of Columbia, No. 1:23-SC-31-BAH
Before the Honorable Beryl A. Howell
JOINT APPENDIX
VOLUME 1 OF 1 (JA1 – JA398)
JAMES I. PEARCE (N.C. BAR NO. 44691) ARI HOLTZBLATT (D.C. BAR NO. 1009913)
CECIL VANDEVENDER (TENN. BAR BENJAMIN POWELL (D.C. BAR NO. 464823)
NO. 029700) WHITNEY RUSSELL (D.C. BAR NO. 987238)
THOMAS P. WINDOM (D.C. BAR WILMER CUTLER PICKERING
NO. 502131) HALE AND DORR LLP
950 Pennsylvania Avenue, N.W. 2100 Pennsylvania Avenue, N.W.
Washington, D.C. 20530 Washington, D.C. 20037
(202) 840-7000 (202) 663-6000
GEORGE P. VARGHESE (MASS. BAR

NO. 706861)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
March 31, 2023

FILED UNDER SEAL
TABLE OF CONTENTS
Page
Non-Disclosure Order (Sealed) (D.D.C. Jan. 17, 2023),
ECF No. 3 ............................................................................... JA1
Memorandum of Points and Authorities In Support of Motion

to Vacate or Modify Non-Disclosure Order Issued
Pursuant to 18 U.S.C § 2705(b) and Stay Twitter’s
Compliance with Search Warrant (Sealed)
(D.D.C. Feb. 2, 2023) ............................................................. JA3
Minute Order Granting Motion to Seal and Directing

Parties to Propose Briefing Schedule (Sealed)
(D.D.C. Feb. 2, 2023) ........................................................... JA21
Government’s Motion for an Order to Show Cause Why

Twitter Inc. Should Not Be Held in Contempt for
Failure to Comply with a Search Warrant (Sealed)
(D.D.C. Feb. 2, 2023) ........................................................... JA22
Proposed Order Regarding Government’s Motion for an Order

to Show Cause Why Twitter Inc. Should Not Be Held in
Contempt for Failure to Comply with a Search Warrant
(Sealed) (D.D.C. Feb. 2, 2023) ............................................ JA26
Email from Gregory Bernstein to Chambers of Judge Howell

(Sealed) (Feb. 3, 2023) ......................................................... JA28
Minute Order Issuing Scheduling Order (Sealed)

(D.D.C. Feb. 3, 2023) .......................................................... JA30
Twitter’s Opposition to Government’s Motion for an Order to

Show Cause (Sealed) (D.D.C. Feb. 6, 2023) ....................... JA33
Exhibit A to Twitter’s Opposition to Government’s Motion for

an Order to Show Cause: Declaration of
(Sealed) (D.D.C. Feb. 6, 2023) ................................ JA49
Exhibit B to Twitter’s Opposition to Government’s Motion for

an Order to Show Cause (Sealed) (D.D.C. Feb. 6, 2023) .... JA56
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Government’s Reply in Further Support of Motion for an Order

to Show Cause Why Twitter Inc. Should Not Be Held in
Contempt for Failure to Comply with a Search Warrant
(Sealed) (D.D.C. Feb. 6, 2023) .......................................... JA136
Transcript of Hearing Before Judge Howell (Sealed)

(D.D.C. Feb. 7, 2023) ......................................................... JA147
Minute Order Granting Order to Show Cause (Sealed)

(D.D.C. Feb. 7, 2023) ......................................................... JA216
Letter from George P. Varghese to Judge Howell (Sealed)

(Feb. 8, 2023) ..................................................................... JA217
Transcript of Hearing Before Judge Howell (Sealed)

(D.D.C. Feb. 9, 2023) ........................................................ JA223
Twitter’s Notice Regarding Applicability of Sanctions (Sealed)

(D.D.C. Feb. 13, 2023) ...................................................... JA274
Government’s Sealed Opposition to Twitter Inc.’s Motion to

Vacate or Modify Non-Disclosure Order and Stay
Twitter’s Compliance with Search Warrant (Sealed)
(D.D.C. Feb. 16, 2023), ECF No. 21 ................................. JA280
Exhibit A to Opposition to Motion to Vacate/Modify Non-

Disclosure Order and Stay Compliance: January 17, 2023
Warrant (Sealed) (D.D.C. Feb. 16, 2023),
ECF No. 21-1 ..................................................................... JA294
Twitter’s Reply in Support of Its Motion to Vacate or Modify

Non-Disclosure Order Issued Pursuant to 18 U.S.C. §
2705(b) and Stay Twitter’s Compliance with Search
Warrant (Sealed) (D.D.C. Feb. 24, 2023) .......................... JA301
Exhibit B to Twitter’s Reply in Support of Its Motion to Vacate

or Modify Non-Disclosure Order Issued Pursuant to
18 U.S.C. § 2705(b) and Stay Twitter’s Compliance
with Search Warrant (Sealed) (D.D.C. Feb. 24, 2023) ..... JA325
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Order Denying Twitter’s Motion to Vacate or Modify Non-

Disclosure Order Issued Pursuant to 18 U.S.C. § 2705(b)
and Stay Twitter’s Compliance with Search Warrant
(Sealed) (D.D.C. Mar. 3, 2023), ECF No. 29 .................... JA354
Memorandum Opinion Regarding Order of the District Court

Denying Twitter’s Motion to Vacate or Modify Non-
Disclosure Order Issued Pursuant to 18 U.S.C. § 2705(b)
and Stay Twitter’s Compliance with Search Warrant
(Redacted) (Sealed) (D.D.C. Mar. 3, 2023),
ECF No. 30 ......................................................................... JA356
Memorandum and Order Denying Twitter’s Motion for a Stay

Pending Appeal (Sealed) (D.D.C. Mar. 10, 2023),
ECF No. 39 ......................................................................... JA391
Twitter’s Notice of Payment (Sealed) (D.D.C. Mar. 27, 2023) ... JA396
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Case 1:23-sc-00031-BAH *SEALED* Document 3 Filed 01/17/23 Page 1 of 2
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
IN THE MATTER OF THE SEARCH OF:

SC No. 23-SC-31
INFORMATION THAT IS STORED AT
PREMISES CONTROLLED BY TWITTER Under Seal
INC. IDENTIFIED IN ATTACHMENT A
ORDER
This matter having come before the Court pursuant to the application of the United States
to seal the above-captioned warrant and related documents, including the application and affidavit
in support thereof and all attachments thereto and other related materials (collectively the
“Warrant”), and to Twitter Inc. (“PROVIDER”), an electronic communication service provider
and/or a remote computing service provider located in San Francisco, California, not to disclose
the existence or contents of the Warrant pursuant to 18 U.S.C. § 2705(b), and to authorize the
government to delay disclosure of the Warrant to the owners of the emails identified in Attachment
A, (“TARGET ACCOUNT(S)”) pursuant to 18 U.S.C. § 3101(a).
The Court finds reasonable grounds to believe that such disclosure will result in destruction
of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the
investigation, as defined in 18 U.S.C. § 2705(b).
The Court further finds that the government has also provided facts giving good cause to
believe that providing immediate notification of the warrant may have an adverse result, as defined
in 18 U.S.C. § 2705(a)(2). Specifically, the Court finds that immediate notification to the customer
or subscriber of the TARGET ACCOUNT(S) would seriously jeopardize the ongoing
investigation, as such a disclosure would give that person an opportunity to destroy evidence,
change patterns of behavior, notify confederates, and flee from prosecution. See 18 U.S.C. §
3103a(b)(1).
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The Court further finds that, because of such reasonable grounds to believe the disclosure
will so impact the investigation, the United States has established that a compelling governmental
interest exists to justify the requested sealing.
1. IT IS THEREFORE ORDERED that, pursuant to 18 U.S.C. § 2705(b),
PROVIDER and its employees shall not disclose the existence or content of the Warrant to any
other person (except attorneys for PROVIDER for the purpose of receiving legal advice) for a
period of 180 days (commencing on the date of this Order), unless the period of nondisclosure is
later modified by the Court.
2. IT IS FURTHER ORDERED that the application is hereby GRANTED, and that
the warrant, the application and affidavit in support thereof, all attachments thereto and other
related materials, the instant application to seal, and this Order are sealed until otherwise ordered
by the Court.
3. IT IS FURTHER ORDERED that the Clerk’s office shall not make any entry on
the public docket of the Warrant until further order of the Court.
Date: January 17, 2023 _________________________

__________________________________________
HON. BERYL A. HOWELL
CHIE) JUDGE
cc: GREGORY BERNSTEIN

Assistant Special Counsel
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From: Howell Chambers <[email protected]>

Sent: Thursday, February 2, 2023 4:53 PM
To: MLD (JSPT); Holtzblatt, Ari
Cc: JPC (JSPT); RNH (JSPT); GDB (JSPT); JIP (JSPT); JMP (JSPT); Teresa Gumiel
Subject: 23-SC-31: Minute Order (February 2, 2023)
EXTERNAL SENDER
Counsel,
Good evening. Please see the below Minute Order entered today in the above referenced matter. Additionally, please
submit all future filings in this matter electronically to [email protected], with a courtesy copy to
[email protected]. Thank you.
Best,
The Chambers of Chief Judge Howell.
Notice of Electronic Filing
The following transaction was entered on 2/2/2023 at 4:42 PM EDT and filed on 2/2/2023
IN THE MATTER OF THE SEARCH OF INFORMATION THAT IS STORED AT PREMISES CONTROLLED BY
Case Name:
TWITTER INC. IDENTIFIED IN ATTACHMENT A
Case Number: 1:23‐sc‐00031‐BAH *SEALED*
Filer:
Document
No document attached
Number:
Docket Text:
MINUTE ORDER (paperless) GRANTING Twitter, Inc.'s unopposed [6] Motion to Seal; and
DIRECTING the government and Twitter, Inc. to confer and propose, by February 3, 2023 at 1
PM, a briefing schedule for the pending [5] government's Motion for an Order to Show Cause
and [7] Twitter, Inc.'s Motion to Vacate or Modify Non-Disclosure Order, as well as a date for
hearing on these pending motions. Signed by Chief Judge Beryl A. Howell on February 2,
2023. Counsel has been notified electronically.(lcbah4)
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DISTRICT OF COLUMBIA
INFORMATION THAT IS STORED AT Case No. 23-SC-31

PREMISES CONTROLLED BY
TWITTER INC. IDENTIFIED IN Filed Under Seal
ATTACHMENT A
GOVERNMENT’S MOTION FOR AN ORDER TO SHOW CAUSE

WHY TWITTER INC. SHOULD NOT BE HELD IN CONTEMPT
FOR FAILURE TO COMPLY WITH A SEARCH WARRANT
Twitter Inc. (“Twitter”) refuses to comply with the search warrant issued by this Court
pursuant to 18 U.S.C. § 2703 for information associated with the Twitter account
“@realDonaldTrump.” ECF No. 4 (the “Warrant”). Twitter asserts two grounds for its non-
compliance. First, Twitter asserts that the non-disclosure order accompanying the warrant, ECF
No. 3 (the “NDO”), issued by this Court pursuant to 18 U.S.C. § 2705(b), is unconstitutional. But
the constitutionality of the non-disclosure order is unrelated to the validity of the Warrant, and
Twitter’s apparent desire to contest it does not excuse its non-compliance. Second, Twitter refuses
to produce records in response to the Warrant until the account holder has an opportunity to litigate
its validity. But neither the Warrant nor Section 2703 provide for such a procedure or excuse
Twitter’s non-compliance. Accordingly, the Government moves this Court to issue an order
scheduling a hearing forthwith for Twitter to show cause why it should not be held in contempt
for failing to comply with the Warrant’s commands. Consistent with the Order sealing the Warrant
and related materials, ECF No. 3, the Government also requests that the Court place this Motion,
the accompanying Order, and any related materials under seal.
On January 17, 2023, the Government applied for the Warrant, as well as the accompanying
NDO, which requires that Twitter not disclose the contents or existence of the Warrant for a period
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of 180 days. ECF Nos. 1, 2. The Court issued the Warrant and the NDO the same day. ECF Nos.
3, 4. The Warrant required that Twitter disclose to the Government information responsive to the
Warrant within 10 days of the Warrant’s issuance. ECF No. 4, Attachment B, ¶ 5.
Twice on January 17, 2023, the Government attempted to serve the Warrant and NDO on
Twitter through its Legal Requests Submissions site but received an automated message indicating
that the “page [was] down.” On January 19, 2023, the Government successfully served the
Warrant and NDO through the site.
On January 25, 2023, the Government contacted counsel for Twitter to inquire as to the
status of the Warrant. Counsel for Twitter indicated she was not aware of the Warrant but would
consider it a priority. The same day, the Government separately provided Twitter’s counsel with
the signed warrant and NDO (previously served through Twitter’s Legal Requests Submissions
site). On January 27, 2023, Twitter’s counsel informed the Government that Twitter would not be
able to comply with the Warrant by its deadline, but would provide an update on January 31, 2023.
On January 31, 2023, counsel for Twitter informed the Government that Twitter believes the NDO
violates the First Amendment. Going further, Twitter indicated that it would not comply with the
Warrant promptly, even in the absence of an NDO, because it wishes to give the account holder
an opportunity to challenge or otherwise object to the Warrant before the Government has the
opportunity to review any responsive materials. The Government requested that Twitter provide,
by close of business on February 1, 2023, authority for its assertion that it can refuse to comply
with the Warrant pending a challenge to the NDO. Twitter provided no such authority, instead
citing inapposite First Amendment case law while reiterating that Twitter “remain[s] unclear as to
what remedy DOJ would propose in this unique situation in the event that the NDO is deemed
invalid yet the materials have already been reviewed” by the Government.
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The Government now moves for an Order to Show Cause why Twitter should not be held
in contempt for its failure to timely comply with the Warrant’s commands. The Warrant ordered
Twitter to produce responsive information by January 27, 2023. More than five days have passed
since the deadline, and Twitter has disclosed nothing to the Government, nor apparently taken the
necessary steps to do so. Instead, Twitter proffers the possibility of litigation as to the NDO and
the collateral aim of preventing the Government from reviewing responsive materials until such
time as the account holder can challenge the Warrant. The Warrant does not countenance the
indefiniteness and interference Twitter seeks.
First, the Warrant and NDO are different court orders, imposing different obligations.
Twitter may not delay, to an unknown future date, compliance with the Warrant by challenging
the NDO. The Government has an interest in prompt enforcement of the Warrant, regardless of
any challenge to the NDO. See, e.g., Google LLC v. United States, 443 F. Supp. 3d 447, 455
(S.D.N.Y. 2020) (denying request to stay warrant deadline pending resolution of challenge to
accompanying non-disclosure order, noting “any further delay . . . increases the risk that evidence
will be lost or destroyed, heightens the chance that targets will learn of the investigation, and
jeopardizes the Government’s ability to bring any prosecution in a timely fashion”). Second,
neither the Warrant itself nor Section 2703 provide for intervention by a third party before
compliance with the Warrant is required. Twitter can point to no authority suggesting otherwise.
Under 18 U.S.C. § 401(3), this Court has the “power to punish by fine or imprisonment, or
both, . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
Given Twitter’s failure to comply with the Warrant’s commands, the Court should order Twitter
to show cause, at a hearing forthwith, why it should not be held in contempt under Section 401(3).
The Government further requests that the hearing be held forthwith, with personal appearance by
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a company representative.
For the foregoing reasons, the Government asks this Court to issue an order to show cause
why Twitter should not be held in contempt for its failure to comply with the Warrant. A proposed
Order is attached.
Respectfully submitted,
JACK SMITH
Special Counsel
By: /s/ Mary L. Dohrmann

Mary L. Dohrmann (N.Y. Bar No. 5443874)
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 714-9376
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TWITTER INC. IDENTIFIED IN Under Seal
ATTACHMENT A
[PROPOSED] ORDER
Upon consideration of the Government’s Motion for an Order to Show Cause Why Twitter
Inc. Should Not Be Held in Contempt for Failure to Comply with a Search Warrant, and the entire
record herein, it is hereby
ORDERED, this ____ day of February, 2023, that the Government’s Motion is
GRANTED and a hearing shall be held forthwith; and it is further
ORDERED that, on February ____, 2023, a company representative (in addition to any
outside counsel) of Twitter Inc. shall personally appear before the Court, and show cause why
Twitter Inc. should not be held in contempt for its failure to comply with the Warrant, ECF No. 4;
and it is further
ORDERED that a copy of this Order shall be served on Twitter Inc. and the Government;
and it is further
ORDERED that the Government’s Motion, this Order, and any related materials are sealed
until otherwise ordered by the Court.
SO ORDERED.
Date: ___________________________________
CHIEF JUDGE BERYL A. HOWELL
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cc: Mary L. Dohrmann

Washington, DC 20530
(202) 714-9376
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From: GDB (JSPT) <[email protected]>

Sent: Friday, February 3, 2023 11:58 AM
To: Howell Chambers; MLD (JSPT); Holtzblatt, Ari; Varghese, George; Powell, Benjamin; Russell, Whitney
D.
Cc: JPC (JSPT); RNH (JSPT); JIP (JSPT); JMP (JSPT); Teresa Gumiel; TPW (JSPT)
Subject: RE: 23-SC-31: Minute Order (February 2, 2023)
EXTERNAL SENDER
Dear Chambers:
The parties submit this joint email in response to the minute order below. The parties did not reach an
agreement on a joint briefing schedule. The government believes the order to show cause and NDO
should be resolved on separate tracks, while Twitter believes the issues should be heard together. Our
proposals are as follows:
Government’s proposed briefing schedule:
Order to show cause briefing schedule

1. Opposition: February 6 at 12:00 p.m.
2. Reply: February 7 at 10:00 a.m.
3. Hearing: February 7 at 3 p.m.
NDO briefing schedule

1. Opposition: February 16
2. Reply: February 23
3. Hearing: Available at the Court’s discretion
Twitter’s proposed briefing schedule:
1. Oppositions: February 6 (end of day)

2. Replies: February 8 (end of day)
3. Hearing: February 9 (after 2 p.m.) or February 10 (whichever day is better for the
Court)
Sincerely,
Gregory Bernstein
202-705-4123 (cell)

Sent: Thursday, February 2, 2023 4:53 PM
To: MLD (JSPT) <[email protected]>; [email protected]
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Cc: JPC (JSPT) <[email protected]>; RNH (JSPT) <[email protected]>; GDB (JSPT) <[email protected]>; JIP (JSPT)
<[email protected]>; JMP (JSPT) <[email protected]>; Teresa Gumiel <[email protected]>
Subject: 23‐SC‐31: Minute Order (February 2, 2023)
Counsel,
Good evening. Please see the below Minute Order entered today in the above referenced matter. Additionally, please
submit all future filings in this matter electronically to dcd cmecf [email protected], with a courtesy copy to
Howell [email protected]. Thank you.
Best,
The Chambers of Chief Judge Howell.
Case Name: IN THE MATTER OF THE SEARCH OF INFORMATION THAT IS STORED AT PREMISES CONTROLLED BY
Filer:
Document
Number:
Docket Text:
MINUTE ORDER (paperless) GRANTING Twitter, Inc.'s unopposed [6] Motion to Seal; and
DIRECTING the government and Twitter, Inc. to confer and propose, by February 3, 2023 at 1
PM, a briefing schedule for the pending [5] government's Motion for an Order to Show Cause
and [7] Twitter, Inc.'s Motion to Vacate or Modify Non-Disclosure Order, as well as a date for
hearing on these pending motions. Signed by Chief Judge Beryl A. Howell on February 2,
2023. Counsel has been notified electronically.(lcbah4)
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Sent: Friday, February 3, 2023 2:56 PM
To: GDB (JSPT); MLD (JSPT); Holtzblatt, Ari; Varghese, George; Powell, Benjamin; Russell, Whitney D.
Cc: JPC (JSPT); RNH (JSPT); JIP (JSPT); JMP (JSPT); Teresa Gumiel; TPW (JSPT)
Subject: 23-SC-31: Minute Order (February 3, 2023)
EXTERNAL SENDER
Counsel,
Good afternoon. Please see the Minute Order entered today in the above referenced matter. The Notice in the Minute
Order refers to the email submitted by the government below. Thank you.
Best,
The Chambers of Chief Judge Howell
U.S. District Court
District of Columbia
IN THE MATTER OF THE SEARCH OF INFORMATION THAT IS STORED AT PREMISES CONTROLLED BY
Case Name:
Filer:
Document
Number:
Docket Text:
MINUTE ORDER (paperless) Upon consideration of the parties' proposed briefing schedules
submitted by email by the government, see [8] NOTICE of Proposed Briefing Schedule,
ISSUING the following SCHEDULING ORDER regarding the government's [5] Motion for Order
to Show Cause:
(1) By February 6, 2023 at 10:00 AM, Twitter, Inc. shall file any opposition to the government's
motion;
(2) By February 6, 2023 at 6:00 PM, the government shall file any reply;
(3) On February 7, 2023 at 1:30 PM, the parties are DIRECTED to appear in-person in
Courtroom 22A for a sealed hearing on the government's motion; and
ISSUING the following SCHEDULING ORDER regarding Twitter, Inc.'s [7] Motion to Vacate or
Modify Non-Disclosure Order:
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IN THE MATTER OF THE SEARCH OF: Case No. 1:23-SC-31 - BAH

PREMISES CONTROLLED BY TWITTER UNDER SEAL
EXHIBIT A
TO TWITTER’S OPPOSITION TO
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DECLARATION OF
I, , declare as follows:
1. I am the Senior Director of Legal for Twitter, Inc. (“Twitter”). Twitter is a global
social media platform that fosters public and private conversations amongst its
450 million active monthly users. I make this Declaration based on my own
personal knowledge and investigation, and if called as a witness to testify, I could
and would testify competently to the following facts.
2. On Wednesday, January 25, at 4:54pm I received an incoming call from Assistant
Special Counsel Greg Bernstein. He informed me that the Special Counsel’s
Office had previously served a search warrant on Twitter for data associated with
the account @realDonaldTrump (“Warrant”). I had not heard anything about this
Warrant prior to the call, which I told him. I said that I would need to look into
the matter and revert. He responded that they were looking for an on time
production, in two days. I said that without knowing more or taking any position
that would be a very tight turnaround for us.
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3. Later that day, at 7:25pm, I received an email from Mr. Bernstein, forwarding an
earlier email from 5:06pm from him addressed to his colleagues but intended for
me that he had forgotten to copy me on, attaching copies of the Warrant and the
Non-Disclosure Order.
4. I directed the preservation of data available in our production environment
associated with the @realDonaldTrump account, and have confirmed that the
available data was preserved.
5. On Thursday, January 26, I placed an outgoing call to Mr. Bernstein, but was
unable to reach him. I followed up with an email sent at 7:37pm, stating, “We are
not going to be able to get back to you by tomorrow. But, I can confirm that the
warrant is working its way through our system, and preservation is in place.”
6. At 7:49pm on Thursday, I missed an incoming call from Mr. Bernstein. He did
not leave a message.
7. At 10:06pm on Thursday, I received an email from Mr. Bernstein seeking to
schedule a call for the following day.
8. On Friday, January 27, I called Mr. Bernstein and confirmed that the Warrant was
being processed through the system but that we were not going to be able to
respond by the 27th. I explained that we needed time to consider the Warrant and
Non-Disclosure Order and we would get back to them early next week with an
update. Mr. Bernstein pressed me for more information, and I assured him I was
one of the most senior lawyers at the company, and the fact that I was attending to
these questions underscored that the company was prioritizing the matter and
taking it very seriously. I reiterated that it was clearly a matter of great
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importance and I had only had it for two days. We agreed to talk again on
Tuesday after 5 pm ET due to Mr. Bernstein’s schedule that day.
9. At 5:02pm ET on Tuesday, January 31, I called Mr. Bernstein as arranged. He did
not answer.
10. At 5:07pm ET, Mr. Bernstein called me back. I told him that I appreciated his
patience. We had had a chance to review the warrant and NDO, consult outside
counsel, and also gather internal information potentially responsive to Attachment
B. I explained that it is essential to Twitter’s business model (including our
commitment to privacy, transparency, and neutrality) that we communicate with
users about law enforcement efforts to access their data. I shared that on
occasion, we have challenged non-disclosure orders, whether in follow-up
conversations with prosecutors or government officials, or in court filings. I
explained that we had reviewed the Non-Disclosure Order here, but we did not
see how it meets the factors outlined in § 2705(b), given the intense publicity
around the investigation. I asked, recognizing that he may not be able to answer,
whether the Special Counsel had sought this information from the National
Archives Records Administration (“NARA”), since it maintains a copy of the
Target Account and have much of the information called for in the Warrant. I
asked that he consider withdrawing the Non-Disclosure Order, given its
restriction on Twitter’s First Amendment rights to communicate with its user. I
told him that we felt that the investigation of the Former President could not be
more publicized. I explained that respectfully, there did not appear to be a
legitimate compelling government interest that justifies restricting Twitter’s First
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Amendment rights to meaningfully communicate with its users. I raised
specifically the claim in the Non-Disclosure Order that the former President was
likely to flee from prosecution if the Non-Disclosure Order or Warrant was
disclosed. I told Mr. Bernstein that it seemed very unlikely that the former
President presents a risk of flight because of a warrant for his Twitter data. I
explained that in our view, Twitter’s First Amendment interests are particularly
important here where the warrant could implicate issues of executive privilege.
I told Mr. Bernstein that Twitter takes no position on these issues, as they are for
the former President to assert, if at all. I offered to continue discussing the matter.
I told him that I understood he had a job to do, and that I had also served as a
federal prosecutor, and emphasized that my job was to protect Twitter’s interests
and our users’ data while meeting our legal obligations. He responded that he
understood, and appreciated my professionalism.
11. At 6:58pm ET on January 31, I missed a call from Mr. Bernstein. He followed
up with an email at 7:05pm asking me to call him back, indicating that it was time
sensitive.
12. At 9:08pm ET on January 31, I returned Mr. Bernstein’s call. He asked me to
clarify our position, specifically on whether we viewed the Warrant and Non-
Disclosure Order as linked or separate. Mr. Bernstein stated that they did not
want to obtain data from NARA, as it would require notification pursuant to the
Presidential Records Act. I told him that Twitter’s position would be that we
should not produce until we resolved our questions as to the NDO. He asked
whether I had any case law support for our position, and I said that I would collect
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FILED UNDER SEAL
it and provide to him. He asked that I provide it by end of the next day. I told
Mr. Bernstein that I was traveling to San Francisco the next day, but would make
sure to get him support for our position.
13. On February 1, at 10:38am, I sent an email to Mr. Bernstein confirming that I
would send an email with support for Twitter’s position later that evening.
14. On February 1, at 10:14pm, I sent the following email to Mr. Bernstein: “As
discussed last night, I want to be clear that Twitter is not taking a position on the
underlying warrant. That said, we continue to believe that production of
responsive data prior to a resolution of Twitter’s questions around the validity of
the non-disclosure order in this case would be inappropriate in light of clear
judicial directives that the status quo should be preserved pending final judicial
resolution of questions around the prior restraint of speech. See Elrod v. Burns,
427 U.S. 347, 373–74 (1976) (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”) (citing
New York Times Co. v. United States, 403 U.S. 713 (1971)); Freedman v. State of
Md., 380 U.S. 51, 59 (1965) (“Any restraint imposed in advance of a final judicial
determination on the merits must similarly be limited to preservation of the status
quo for the shortest fixed period compatible with sound judicial resolution.”);
Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002) (“any restraint prior to
judicial review can be imposed only for a specified brief period during which the
status quo must be maintained”). Although I understand your position that the
NDO and the warrant could be litigated separately, we remain unclear as to what
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Case No. 1:23-SC-31 - BAH
EXHIBIT B
TO TWITTER’S OPPOSITION TO
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2/3/23, 4:58 PM 2 top Pence aides appear before Jan. 6 grand jury - POLITICO
Two of former Vice President Mike Pence’s top White House aides have
testified recently to a federal grand jury investigating matters connected to the
Jan. 6, 2021, attack on the Capitol, according to two people familiar with the
matter.
Marc Short, Pence’s former chief of staff, testified last week under subpoena,
while Pence’s former chief counsel Greg Jacob, also testified recently, though
the timing and circumstances of his appearance were not immediately clear.
Short was spotted by ABC cameras exiting the federal courthouse Friday, on
the same day Donald Trump’s ally Steve Bannon was convicted of contempt of
Congress for defying a Jan. 6 select committee subpoena.
AD
Both Short and Jacob cooperated with the Jan. 6 select committee, testifying in
January and February this year, respectively. Jacob was also a star witness for
the panel, testifying at a public hearing in June about helping Pence fend off
Donald Trump’s effort to deputize the vice president to disrupt the transfer of
power to Joe Biden.
Short and Jacob are two of the most significant witnesses known to face grand
jury questions related to Jan. 6. Both were in key meetings on Jan. 4 and 5,
2021, as Trump attorney John Eastman worked to persuade Pence to adopt a
fringe legal theory that would permit the then-vice president to single-
handedly overturn the election certification on Jan. 6.
Trump was present for the Jan. 4 meeting, when Pence rejected his and
Eastman’s entreaties. Short and Jacob were also both with Pence on Jan. 6 as a
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mob stormed the Capitol, sending them all fleeing for safety. Jacob’s email
exchanges with Eastman amid the chaos have become crucial pieces of
evidence for Jan. 6 investigators, showing Eastman continuing to lean on
Pence and Jacob even as violence raged.
Jacob’s memos and notes, explaining why he viewed Eastman’s effort as illegal,
have proven significant documents for investigators. Among his conclusions:
State legislatures had refused, as of Jan. 6, to certify alternate slates of electors,
leaving the false slates assembled by pro-Trump activists in multiple states
without any claim of authority.
Eastman had previously embraced that notion as well, according to emails and
correspondence obtained by the Jan. 6 committee, but pushed ahead with
Trump’s plan anyway.
Short testified to the Jan. 6 select committee in January about Pence’s efforts
to convince Trump that he lacked the power to overturn the election, a message
Pence relayed numerous times in the weeks before Jan. 6. But Trump, relying
on a cadre of fringe attorneys, pushed a theory that Pence — who was charged
by the Constitution with presiding over the count of electoral votes on Jan. 6 —
could unilaterally refuse to count dozens of electors for Joe Biden, or postpone
the count altogether.
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2/3/23, 4:59 PM Appointment of a Special Counsel | OPA | Department of Justice
An off c al webs te of the Un ted States government

Here’s how you know
STICE NEWS
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE Friday, November 18, 2022
Appointment of a Special Counsel
Attorney General Merrick B. Garland announced today the appointment of former career Justice Department prosecutor
and former chief prosecutor for the special court in The Hague, Jack Smith, to serve as Special Counsel to oversee two
ongoing criminal investigations. The first is the investigation, as described in court filings in the District of Columbia, into
whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or
the certification of the Electoral College vote held on or about January 6, 2021. The second is the ongoing investigation
involving classified documents and other presidential records, as well as the possible obstruction of that investigation,
referenced and described in court filings submitted in a pending matter in the Southern District of Florida.
“Based on recent developments, including the former President’s announcement that he is a candidate for President in
the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the
public interest to appoint a special counsel,” said Attorney General Garland. “Such an appointment underscores the
Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows
prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the
facts and the law.”
The Attorney General also stated, “Although the Special Counsel will not be subject to the day-to-day supervision of any
official of the Department, he must comply with the regulations, procedures, and policies of the Department. I will
ensure that the Special Counsel receives the resources to conduct this work quickly and completely. Given the work
done to date and Mr. Smith’s prosecutorial experience, I am confident that this appointment will not slow the completion
of these investigations. The men and women who are pursuing these investigations are conducting themselves in
accordance with the highest standards of professionalism. I could not be prouder of them. I strongly believe that the
normal processes of this Department can handle all investigations with integrity. And I also believe that appointing a
Special Counsel at this time is the right thing to do. The extraordinary circumstances presented here demand it. Mr.
Smith is the right choice to complete these matters in an even-handed and urgent manner.”
Special Counsel Smith has resigned as the chief prosecutor for the special court in The Hague charged with
investigating and adjudicating war crimes in Kosovo.
Attachment(s):
Download 2022.11.18 order 5559-2022.pdf
Component(s):
Office of the Attorney General
Press Release Number:

22-1237
Updated November 18, 2022
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2/3/23, 4:59 PM Appointment of a Special Counsel | OPA | Department of Justice
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2/3/23, 5:07 PM ‘Decisions are imminent’: Georgia prosecutor nears charging decisions in Trump probe - POLITICO
The Atlanta-area district attorney investigating Donald Trump’s effort to

subvert the 2020 election indicated on Tuesday that decisions on whether to
seek the indictment of the former president or his associates were “imminent.”
“Decisions are imminent,” Fulton County District Attorney Fani Willis said
during a Tuesday court hearing called by the Georgia trial court judge
overseeing the “special purpose grand jury” that Willis has used to gather
evidence over the last year.
AD
Willis’ remark came as she urged the judge, Robert McBurney, to oppose calls
to publicly release the findings of her yearlong probe, which she conducted
alongside the special grand jury to examine Trump and his inner circle.
Willis has spent the last year investigating Trump’s and his allies’ effort to
reverse the election results in Georgia, despite losing the state by more than
11,000 votes. The special grand jury probed Trump’s Jan. 2 phone call to
Georgia Secretary of State Brad Raffensperger, asking him to “find” just
enough votes to put him ahead of Joe Biden in the state. And it pursued
evidence about Trump’s broader national effort to subvert the election, calling
top allies like his White House chief of staff Mark Meadows, former national
security adviser Michael Flynn, attorney John Eastman and Sen. Lindsey
Graham (R-S.C.).
https://www.politico.com/news/2023/01/24/decisions-are-imminent-georgia-prosecutor-nears-charging-decisions-in-trump-probe-00079283 2/5
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2/3/23, 5:07 PM ‘Decisions are imminent’: Georgia prosecutor nears charging decisions in Trump probe - POLITICO
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2/3/23, 4:59 PM DOJ seizes Team Trump phones as part of intensifying Jan. 6 probe
stealing classified materials, refusing to give them back, and obstructing the retrieval process.
There’s an ongoing criminal investigation, and indictments are a distinct possibility.
But by some measures, the most dramatic scrutiny of Donald Trump and his team remains the
Justice Department’s criminal probe of the Jan. 6 attack and the Republicans’ efforts to overturn
the election results.
For months, there was ample speculation about whether investigators were moving forward with
any vigor at all. As the latest New York Times reporting suggests, those questions continue to get
answers.
Justice Department officials have seized the phones of two top advisers to former
President Donald J. Trump and blanketed his aides with about 40 subpoenas in a
substantial escalation of the investigation into his efforts to subvert the 2020
election, people familiar with the inquiry said on Monday. The seizure of the phones,
coupled with a widening effort to obtain information from those around Mr. Trump
after the 2020 election, represent some of the most aggressive steps the department
has taken thus far in its criminal investigation into the actions that led to the Jan. 6,
2021, assault on the Capitol by a pro-Trump mob.
According to the Times’ reporting, much of which has been confirmed by NBC News, federal
agents executed court-approved search warrants, taking the phones of at least two people —
Trump lawyer Boris Epshteyn and campaign strategist Mike Roman — while also issuing
subpoenas to a variety of figures, including Dan Scavino, Trump’s former social media director,
and Bernie Kerik.
The subpoenas, according to the Times, were related to the investigation into the fake electors
scheme.
To quickly recap for those who might benefit from a refresher, let’s revisit our earlier coverage
and review how we arrived at this point. It was in March when the Times first reported that
federal prosecutors “have substantially widened their Jan. 6 investigation to examine the
possible culpability of a broad range of figures involved in former President Donald J. Trump’s
efforts to overturn the results of the 2020 election.”
It raised a few eyebrows for a reason: The Justice Department hasn’t made a lot of noise about its
Jan. 6 probe, but the reporting suggested it was eyeing Team Trump, and not just rank-and-file
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rioters who launched their assault in his name.
Around the same time, The Washington Post also reported that the federal grand jury had
“issued subpoena requests to some officials in former president Donald Trump’s orbit who
assisted in planning, funding and executing the Jan. 6 rally.”
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In the months that followed, the grand jury heard from top members of former Vice President
Mike Pence’s team. As part of the same probe, federal investigators descended on Jeffrey Clark’s
home; FBI agents executed a search warrant against Trump lawyer John Eastman; and Ali
Alexander, the founder of the “Stop the Steal” group that organized a Jan. 6 rally, also testified.
We also learned a month ago that a grand jury subpoena made a sweeping demand for “all
materials, in whatever form” that the National Archives had given to Congress’ Jan. 6 committee,
including “records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and
a draft text of the president’s speech that preceded the riot.”
It’s against this backdrop that federal law enforcement has seized some Trump advisers’ phones
and blanketed his aides with about 40 subpoenas.
It’s unlikely that anyone would characterize the Justice Department’s probe as swift or rushed,
but let there be no doubt: This investigation exists and it’s obviously intensifying.
For the former president and his political operation, this is not at all good news.
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Steve Benen
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MSNBC political contributor. He's
also the bestselling author of "The Impostors: How Republicans Quit Governing and Seized American Politics."
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2/3/23, 4:58 PM DOJ sends some 40 subpoenas to Trump aides - POLITICO
The Justice Department has issued some 40 subpoenas to aides of former

President Donald Trump regarding Trump’s efforts to overturn the 2020
presidential election, POLITICO confirmed Monday.
The subpoenas, first reported by The New York Times, are a major step
forward in the ongoing investigation of the events leading up to the Jan. 6,
2021, attack on the Capitol. They also come as Trump is dealing with a separate
inquiry into his handling of presidential records and classified material that he
took with him to his home in Florida after the end of his presidency. Trump’s
lawyers and the Justice Department are currently in a protracted legal battle
over the custody of those records.
AD
Former Trump adviser Stephen Bannon was the first to discuss the recent
batch of subpoenas, saying on his podcast last week that 35 had been issued.
That number appears to have been a slight lowballing of the actual figure.
Among matters that investigators are reportedly looking into is Trump’s post-
election fundraising and his efforts to overturn the election by appointing false
electors. As POLITICO previously reported, a grand jury issued subpoenas last
week seeking information about Trump’s Save America PAC.
On his show Monday night, Fox News host Tucker Carlson said he had
obtained a copy of a subpoena that was issued and that it pertained to “any
claim that the vice president and/or the president of the Senate had the
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2/3/23, 4:58 PM DOJ sends some 40 subpoenas to Trump aides - POLITICO
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2/3/23, 4:58 PM Dozens of Trump aides subpoenaed in DOJ probe of Jan. 6 Capitol attack
POLITICS Subpoenas Add Topic
Justice Department subpoenas dozens of

Trump aides in apparent escalation of
investigation, according to reports
The investigation of Trump's effort to overturn the 2020 election and the Capitol attack on
Jan. 6, 2021, is separate from the seizure of documents from Mar-a-Lago.
Bart Jansen
USA TODAY
Published 7:43 p.m. ET Sept. 12, 2022 Updated 8:52 p.m. ET Sept. 12, 2022
Key Points
The Justice Department subpoenaed dozens of Trump aides and seized at least two phones.
Some subpoenas sought information from people who challenged the 2020 election results.
Some subpoenas focused on Trump fundraisers and organizers of his rally before the Capitol riot.
WASHINGTON – The Justice Department issued dozens of subpoenas to Donald Trump’s

aides and associates for information about the 2020 election and the Capitol attack on Jan.
6, 2021, according to The New York Times and CNN.
The flurry of subpoenas suggested the investigation, which is separate from the seizure of
Trump administration documents from Mar-a-Lago, is picking up pace.
At least two Trump aides, Boris Epshteyn and Mark Roman, had their phones seized as
evidence, according to the Times. Epshteyn declined comment.
The subpoenas seek information about the Trump campaign's plan to organize alternate
slates of electors in states President Joe Biden won. Epshteyn had copied on emails in late
2020 from Trump lawyer John Eastman, who developed the plan.
Eastman has already been subpoenaed and had his phone seized. Eastman earlier refused to
answer questions from the House panel investigating the Capitol attack or a grand jury in
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Georgia based on his Fifth Amendment right against self-incrimination.
Another subpoena recipient was Bernard Kerik, the former New York City police
commissioner, who coordinated the investigation of claims of voter fraud with Trump lawyer
Rudy Giuliani.
Kerik’s lawyer, Timothy Parlatore, told USA TODAY that Kerik was willing to testify to
federal investigators as he had already before the House committee. Kerik had already
turned over examples of probable case of election fraud to the Justice Department for further
investigation in late 2020, Parlatore said.
Former Attorney General Bill Barr has testified to the House panel that the department
found no evidence to support the Trump campaign's claims of widespread fraud.
Parlatore said the department's latest subpoena read as if the current investigation had no
focus and asked Kerik about names he didn’t recognize.
“The normal DOJ subpoena looks like rifle shots,” Parlatore said. “This looks like a whole
bunch of scatter-shot shotgun blasts, almost like a spray-and-pray mindset.”
The latest subpoenas included one to Dan Scavino, Trump’s former social-media director,
according to the Times. Trump promoted his fundraising to fight the results of the 2020
election and his rally the morning of Jan. 6 through social media. Scavino’s lawyer, Stanley
Woodward Jr., declined comment.
Others who were subpoenaed include former Trump campaign manager Bill Stepien and
Sean Dollman, the campaign's chief financial officer, according to CNN.
The Justice Department declined comment on the subpoenas.
The investigation is separate from the seizure of Trump administration documents, which
included dozens of classified records, from Mar-a-Lago. In that probe, federal investigators
said they were looking for evidence of violations of the Espionage Act for mishandling
national defense documents or of obstruction of justice.
More: Will Trump or his allies face charges over Jan. 6? Legal experts explain hurdles DOJ
faces
The investigation is also separate, but overlaps with a local investigation in Fulton County,
Georgia. District Attorney Fani Willis has convened a special grand jury to investigate fake
h 3
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electors and other potential election fraud by Trump and his campaign. The grand jury has
subpoenaed Eastman and Giuliani, among others.
The Justice Department earlier declined without explanation to press charges against
Scavino or former White House chief of staff Mark Meadows over defying subpoenas from
the House committee investigating the attack. But the department charged Trump political
strategist Steve Bannon, who was convicted of contempt, and former trade adviser Peter
Navarro, who awaits trial.
https://www.usatoday.com/story/news/politics/2022/09/12/trump-aides-subpoenaed-justice-department-jan-6-capitol-attack/10361875002/ 3/3
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2/3/23, 5:03 PM Federal Agents Seized Phone of John Eastman, Key Figure in Jan. 6 Plan - The New York Times
https://www.nytimes.com/2022/06/27/us/politics/john-eastman-jan-6.html
Federal Agents Seized Phone of John Eastman, Key Figure in Jan. 6 Plan
The action suggests that the criminal inquiry is accelerating into the efforts to help overturn the results of the 2020 election.
By Alan Feuer and Adam Goldman
June 27, 2022
Federal agents armed with a search warrant have seized the phone of John Eastman, a lawyer who advised former President Donald J.
Trump on key elements of the effort to overturn the results of the 2020 election, according to a court filing by Mr. Eastman on Monday.
The seizure of Mr. Eastman’s phone is the latest evidence that the Justice Department is intensifying its sprawling criminal investigation
into the various strands of Mr. Trump’s efforts to remain in power after he was defeated for re-election.
In the past week alone, the department has delivered grand jury subpoenas to a variety of figures with roles in backing Mr. Trump’s efforts
and it carried out at least one other search of a key figure.
The filing by Mr. Eastman, a motion to recover property from the government, said that F.B.I. agents in New Mexico, acting on behalf of
the Justice Department’s Office of the Inspector General, stopped Mr. Eastman as he was leaving a restaurant last Wednesday and seized
his iPhone.
A copy of the warrant included as an exhibit in Mr. Eastman’s filing said that the phone would be taken to either the Justice Department or
the inspector general’s forensic lab in Northern Virginia.
According to the filing, the seizure of Mr. Eastman’s phone came on the same day that federal agents raided the home and seized the
electronic devices of Jeffrey Clark, a former Justice Department official who was central to Mr. Trump’s attempts to coerce the
department’s leaders into backing his false claims of fraud in the election.
The inspector general’s office, which has jurisdiction over investigations of Justice Department employees, also issued the warrant in the
search of Mr. Clark’s home, a person familiar with the investigation said. The warrant indicated that prosecutors are investigating Mr.
Clark for charges that include conspiracy to obstruct the certification of the presidential election, the person familiar with the investigation
said.
A spokesman for the U.S. attorney’s office in Washington, which is overseeing the inquiry, declined to comment on Mr. Eastman’s court
filing.
With Mr. Eastman and Mr. Clark, the department is gathering information about two lawyers who were in close contact with Mr. Trump in
the critical weeks before the Jan. 6, 2021, attack on the Capitol by a pro-Trump mob.
The advice they were giving Mr. Trump involved separate but apparently intersecting proposals to provide him with a means of averting
his defeat, with Mr. Clark focused on using the power of the Justice Department on Mr. Trump’s behalf and Mr. Eastman focused on
disrupting the congressional certification of the election’s outcome.
Jeffrey Clark at a news conference in October 2020. Yuri Gripas/Reuters
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The search warrant executed on Mr. Eastman by the inspector general’s office may have been issued because of his connections to Mr.
Clark, which were briefly touched on at a hearing by the House select committee on Jan. 6 last week, a day after the raids on the two men.
At the hearing, Representative Liz Cheney, Republican of Wyoming and the panel’s vice chairwoman, said that Ken Klukowski, a Justice
Department lawyer who was in contact with Mr. Eastman, also helped Mr. Clark draft a letter to Gov. Brian Kemp of Georgia stating
falsely that the Justice Department had identified “significant concerns” about the “outcome of the election” in Georgia and several other
states.
How Times reporters cover politics. We rely on our journalists to be independent

observers. So while Times staff members may vote, they are not allowed to endorse
or campaign for candidates or political causes. This includes participating in
marches or rallies in support of a movement or giving money to, or raising money
for, any political candidate or election cause.
Learn more about our process.
Did you find this information helpful? Yes No
The letter further recommended that Mr. Kemp call a special session of the state legislature to create “a separate slate of electors
supporting Donald J. Trump.”
Mr. Klukowski, who briefly served under Mr. Clark at the Justice Department and had earlier worked at the White House budget office,
also “worked with John Eastman,” Ms. Cheney said during the hearing. She went on to describe Mr. Eastman as “one of the primary
architects of President Trump’s scheme to overturn the election.”
Ken Klukowski, center, a Justice Department lawyer who was in contact with Mr.
Eastman, arrived for a meeting with the Jan. 6 House select committee late last year. Al
Drago for The New York Times
The inspector general’s office has the authority to look into any public corruption crimes committed by Justice Department personnel, said
Michael R. Bromwich, a former department inspector general during the Clinton administration.
“Those investigations can lead to people and places outside the Justice Department,” Mr. Bromwich said. “There must be a connection
between Eastman and someone who worked at the department.”
A former law professor in California, Mr. Eastman helped develop and promote a brazen plan to justify having Vice President Mike Pence
single-handedly block or delay certification of the Electoral College results showing Joseph R. Biden Jr.’s victory in the 2020 election. In a
series of meetings and phone calls, Mr. Trump and Mr. Eastman pressured Mr. Pence to put the plan into action when Mr. Pence presided
over a joint session of Congress on Jan. 6, 2021.
Mr. Pence’s refusal to go along helped fuel the violence that overwhelmed the Capitol that day and became a bloody symbol of Mr. Trump’s
efforts to subvert the outcome of the election. Earlier this a year, a federal judge in California considering a civil suit concerning the
release of Mr. Eastman’s emails to the House select committee concluded that Mr. Eastman and Mr. Trump most likely committed two
felonies — obstruction of a proceeding before Congress and a conspiracy to defraud the United States — for their joint role in the pressure
campaign against Mr. Pence.
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Mr. Eastman was also instrumental in advising Mr. Trump to create purported slates of electors backing Mr. Trump in key swing states
won by Mr. Biden. These false pro-Trump electors were intended to give Mr. Pence a quasi-legal rationale for delaying or blocking the
Electoral College certification on Jan. 6, or even trying to throw the election to the House of Representatives.
Last week, a federal grand jury in Washington issued subpoenas to several people who prosecutors believe may have information about
the so-called fake elector plan. Among those who received subpoenas were top Republicans in key swing states who served as purported
pro-Trump electors, including Kelli Ward, the chairwoman of the Arizona Republican Party, and David Shafer, the chairman of the Georgia
Republican Party.
The subpoenas, some of which have been obtained by The New York Times, show that prosecutors are seeking information about lawyers
like Mr. Eastman who were close to Mr. Trump during the chaotic postelection period. The subpoenas also seek information on other
lawyers like Rudolph W. Giuliani, who oversaw Mr. Trump’s election challenges in general, and Kenneth Chesebro, who wrote legal memos
laying out the viability of the fake elector plan.
In Mr. Eastman’s court papers, filed in Federal District Court in New Mexico, he says that the search warrant did not mention what
underlying crime prosecutors were looking into by seizing his phone.
On Monday night, Mr. Eastman appeared on Tucker Carlson’s Fox News show and discussed the seizure of his phone, repeating his
complaint that the warrant never specified what violation of the law prosecutors were investigating.
“There was no indication of any crime this is connected to,” he said.
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2/3/23, 5:04 PM Federal Authorities Search Home of Jeffrey Clark - The New York Times
https://www.nytimes.com/2022/06/23/us/politics/jeffrey-clark-trump-justice-dept.html
Federal Authorities Search Home of Trump Justice Dept. Official

Investigators went to the suburban Washington home of Jeffrey Clark in connection with the sprawling inquiry into the Jan. 6 attack and
the effort to overturn the 2020 election.
By Alan Feuer, Adam Goldman and Maggie Haberman
June 23, 2022
Federal investigators carried out an early-morning search on Wednesday at the home of Jeffrey Clark, a former Justice Department
official, in connection with the department’s sprawling criminal inquiry into efforts to overturn the 2020 election, people familiar with the
matter and an associate of Mr. Clark said.
It remained unclear exactly what the investigators may have been looking for. But Mr. Clark was central to President Donald J. Trump’s
unsuccessful effort in late 2020 to strong-arm the nation’s top prosecutors into supporting his claims of election fraud, and the search
suggested that the criminal investigation could be moving closer to Mr. Trump.
The law enforcement action at Mr. Clark’s home in suburban Virginia came just one day before the House committee investigating the Jan.
6, 2021, attack on the Capitol held a hearing setting out in vivid and powerful detail Mr. Trump’s efforts to pressure the Justice Department
to help him reverse his election defeat.
The committee explored Mr. Clark’s role in particular in helping Mr. Trump try — ultimately unsuccessfully — to pressure the department
into lending credence to his baseless assertions of election fraud and pressure officials in Georgia, a key swing state, into reconsidering
their certification of Joseph R. Biden Jr.’s victory.
One of Mr. Clark’s associates described the striking scene early Wednesday morning when a dozen federal law-enforcement officials
raided the house, seized Mr. Clark’s electronic devices and put him out on the street in his pajamas.
“All because Jeff saw fit to investigate voter fraud,” said the associate, Russ Vought, who runs the Center for Renewing America, where Mr.
Clark is a senior fellow. “This is not America, folks. The weaponization of government must end.”
Mr. Clark told Tucker Carlson of Fox News on Thursday that he had been woken by agents banging on his door shortly before 7 a.m. on
Wednesday. He said that “12 agents and two Fairfax County police officers went into my house, searched it for three and a half hours.” The
agents, he said, “took all of the electronics from my house.”
Mr. Clark criticized the investigation as “highly politicized” and suggested that it was no coincidence that the raid took place just before
the House committee’s hearing. “We’re living in an era I don’t recognize,” he said.
The search at Mr. Clark’s home was a significant step in the Justice Department’s many-tentacled inquiry into the efforts to subvert the
democratic process after the 2020 election.
In the early spring, a separate strand of the investigation was revealed as grand jury subpoenas were issued seeking information on a
wide cast of political organizers, White House aides and members of Congress connected in various ways to Mr. Trump’s incendiary
speech near the White House that directly preceded the storming of the Capitol.
Mr. Clark’s involvement in the inquiry was also the latest sign that the department’s investigation had nudged ever closer to Mr. Trump
himself — and to some of his allies in Congress. Mr. Clark worked closely with Mr. Trump in the weeks leading up to the Jan. 6 attack on
the Capitol, as Mr. Trump’s options closed off, to use the Justice Department as a tool for achieving his political ends.
Encouraged by members of the far-right House Freedom Caucus, Mr. Trump considered and then abandoned a plan in the days just before
the Jan. 6 attack to put Mr. Clark in charge of the Justice Department as acting attorney general.
At the time, Mr. Clark was proposing to send a letter to state officials in Georgia falsely stating that the department had evidence that
could lead Georgia to rescind its certification of Mr. Biden’s victory in that key swing state. The effort was cut short by his superiors in the
department.
How Times reporters cover politics. We rely on our journalists to be independent

observers. So while Times staff members may vote, they are not allowed to endorse
or campaign for candidates or political causes. This includes participating in
marches or rallies in support of a movement or giving money to, or raising money
for, any political candidate or election cause.
Learn more about our process.
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2/3/23, 5:04 PM Federal Authorities Search Home of Jeffrey Clark - The New York Times
Did you find this information helpful? Yes No
Attorney General Merrick B. Garland has said little publicly about the criminal investigation other than that the Justice Department
would follow the facts. But he has been under pressure from some Democrats, including members of the House select committee, to hold
Mr. Trump and his allies to account for the effort to disrupt the peaceful transfer of power.
The developments regarding Mr. Clark came to light as a federal grand jury sitting in Washington continued to issue subpoenas to people
involved in a related plan by Mr. Trump and his allies to overturn the election: an effort to subvert the normal workings of the electoral
process by creating fake slates of pro-Trump electors in states that were actually won by Mr. Biden.
In the past two days, according to several people familiar with the matter, at least nine people in four different states have received
subpoenas in connection with the fake-elector investigation. They were largely those who agreed to be electors for Mr. Trump themselves
or were aides to Mr. Trump’s campaign in states where the plan was carried out.
Among those who received subpoenas were Kelli Ward, the chairwoman of the Arizona Republican Party, and her husband, Michael, both
of whom served as electors on Mr. Trump’s purported slate in the state, according to a person familiar with the matter. Along with the
Wards, subpoenas were issued to two other pro-Trump electors in Arizona, Nancy Cottle and Loraine B. Pellegrino, the person said.
Their lawyer, Alexander Kolodin, attacked the Justice Department’s fake elector inquiry.
“This is an investigation based on allegations that our clients engaged in core First Amendment activity — petitioning Congress about
grievances,” Mr. Kolodin said.
On Wednesday evening, a local news outlet in Nevada reported yet another development in the fake-elector investigation: Federal agents
armed with a search warrant had seized the phone of Michael McDonald, the chairman of the Nevada Republican Party who had served
as pro-Trump elector in the state. A search warrant was also issued for the party’s secretary, James DeGraffenreid, who had taken part in
the scheme as an elector as well, the news outlet reported.
Lawyers for Mr. McDonald and Mr. DeGraffenreid did not return phone calls on Thursday seeking comment.
While several state officials and Trump campaign aides have received subpoenas in the fake-elector investigation, the inquiry is primarily
focused on a group of lawyers who worked closely with Mr. Trump in devising the scheme. Those lawyers include Rudolph W. Giuliani,
who oversaw Mr. Trump’s challenges to the election in general, and John Eastman, who advised the former president on creating the fake
electors, among other things.
Mr. Giuliani and Mr. Eastman have figured prominently in earlier hearings this month by the House select committee. The two men, the
committee showed, were intimately involved in efforts to cajole state officials to throw the election to Mr. Trump and in pressuring Vice
President Mike Pence to single-handedly grant Mr. Trump a victory in the Electoral College.
At the committee’s last hearing, on Tuesday, investigators for the first time directly linked Mr. Trump to the fake elector plan. The
committee introduced a recorded deposition from Ronna McDaniel, the chairwoman of the Republican National Committee, in which she
recounted how Mr. Trump called her and put Mr. Eastman on the phone “to talk about the importance of the R.N.C. helping the campaign
gather these contingent electors.”
Mr. Clark’s role in the efforts to subvert the election are arguably most closely related to the pressure campaign against state officials to
create pro-Trump electors.
In late December 2020, Mr. Clark, while serving as the acting head of the Justice Department’s civil division, helped to draft a letter to Gov.
Brian Kemp of Georgia stating — without evidence — that the Justice Department had identified “significant concerns” about the
“outcome of the election” in Georgia and several other states.
The letter advised Mr. Kemp, a Republican, to call a special session of his state’s General Assembly to create “a separate slate of electors
supporting Donald J. Trump.”
Mr. Clark pressured the acting attorney general at the time, Jeffrey A. Rosen, to sign and send the letter to Mr. Kemp, but Mr. Rosen
refused.
Mr. Rosen was among the former Justice Department officials who testified about Mr. Clark before the House committee at its hearing on
Thursday.
Katie Benner contributed reporting.
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February 18, 2022
The Honorable Carolyn B. Maloney

Chairwoman
Committee on Oversight and Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Dear Madam Chairwoman:
I write to you pursuant to my authority under section 2203(e) of the Presidential

Records Act (PRA), as amended (44 U.S.C. §§ 2201-2209), which establishes that I may
“request the advice” of the appropriate committees of the House and the Senate when I
consider that a proposed disposal of Presidential records by the incumbent President
“may be of special interest to the Congress” or that “consultation with the Congress
regarding the disposal of these particular records is in the public interest.” While this
provision specifically applies to disposals proposed by the incumbent President, the
National Archives and Records Administration (NARA) has always interpreted it to apply
to disposals of Presidential records of which I was not informed.
Under the PRA, all Presidential records automatically transfer to NARA’s legal custody
when the President leaves office. With respect to the Trump Presidential records, the
legal transfer took place on January 20, 2021. However, it is not uncommon for there
to be a delay before NARA takes physical custody of all of the records. The complex
technical work needed to transfer hundreds of terabytes of electronic records, coupled
with a one-term transition, meant that the physical transfer could not be completed
between the Presidential election and Inauguration Day. It took until November 2021
for NARA to receive all of the electronic Trump Presidential records.
Included among the Trump Presidential electronic records are those created on social
media platforms. NARA recognizes that social media records are a relatively recent
phenomenon, that capturing records on social media platforms is an evolving process,
and that different platforms pose different issues with respect to how records are
defined and managed.
By this letter, I am advising you that the Trump Administration did not fully capture, and
therefore NARA did not receive, all of the Presidential records created by President
Trump and White House staff that were posted on social media platforms, as
summarized in more detail below:
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● Early in the Trump Administration, questions were raised about President Trump’s
use of his personal Twitter account to conduct official government business and
whether deleted tweets were being captured and preserved as Presidential
records. In March 2017, NARA advised the Trump Administration that it should
capture and preserve as Presidential records all tweets that the President posts
in the course of his official duties, whether on his personal @realDonaldTrump
account or on the official @POTUS account, including those tweets that were
subsequently deleted. As I reported in a March 30, 2017, letter to Senators
Claire McCaskill and Tom Carper, NARA was “informed by White House officials
that they [were], in fact, doing so.”
Since the end of the administration, we have learned that the White House
initially used a manual process to capture tweets that were deleted from
@realDonaldTrump and @POTUS by copying them from non-governmental
organizations that were capturing them, such as Propublica and Factba.se. The
White House did not begin using the vendor ArchiveSocial to automate the
capture of tweets and other social media records in real-time until January 2018.
Moreover, @realDonaldTrump was not enrolled until August 2018 and the tool
stopped capturing @realDonaldTrump in April 2020. The official @POTUS was
enrolled in February 2018 and remained connected throughout the rest of the
administration.
When properly implemented, ArchiveSocial captures all versions of content as it

appears on the platforms, along with any changes, such as deleted or edited
content, changes to an account profile, and direct or private messages. However,
it cannot capture such changes retroactively. If a social media account is not
enrolled or subsequently becomes disconnected from ArchiveSocial, any changes,
including deleted or modified posts, cannot be captured.
The Twitter account @realDonaldTrump was disconnected from ArchiveSocial in

April 2020. A key feature of ArchiveSocial is that it sends automated alerts to the
account owners/system administrators every three to five days to remind them
to reconnect any disconnected accounts. The tool also displays information about
the account status in the dashboard. This account was not re-enrolled.
When White House officials brought this problem to our attention near the end of
the administration, Twitter had permanently suspended @realDonaldTrump.
NARA contacted Twitter directly to ask if it retained the account data between
April 20th and the account’s suspension. Twitter provided us with a copy of the
available account data. However, it did not include previously deleted tweets,
which are not retained by the company. Accordingly, we were unable to obtain a
complete set of these Presidential records from the Trump Administration or
Twitter. While we do have access to copies of deleted tweets collected by other
non-governmental sources, we do not consider them as official Presidential
records and cannot ensure the completeness of their captured account data.
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● The Trump White House did not take any steps to capture deleted content from
any Trump Administration social media account other than @realDonaldTrump or
@POTUS prior to enrolling them with ArchiveSocial. As with @realDonaldTrump,
many other Trump Administration social media accounts were not enrolled until
the summer or fall of 2018, even though these accounts were active for over a
year prior to enrollment, during which time deleted or modified Presidential
record content was not captured. Other accounts were not enrolled until just
prior to the end of the administration.
● The ArchiveSocial tool included the ability to capture direct messages that may
have been used on the platforms, but the Trump Administration opted not to
enable capture of direct messages, and was unable to report whether direct
messaging was actually used on any of the platforms by the account holders.
● NARA identified seven Twitter accounts that we think contain presidential record
information, but were not captured by the Trump Administration. These accounts
belonged to Andrew Giuliani, Chad Gilmartin, Ivanka Trump, Kayleigh McEnany,
Kellyanne Conway, Mark Meadows, and Peter Navarro. After the end of the
administration, NARA obtained the publicly available tweets from these accounts
in order to supplement its archival collection.
● In January 2021, administration officials advised NARA that two social media
accounts they thought contained Presidential record content were not enrolled in
ArchiveSocial and could not be retroactively enrolled as they had been
suspended by the platforms. These accounts were Donald J. Trump on Facebook
and @realDonaldTrump on Instagram. NARA endeavored to work with Facebook,
which operates Instagram, to obtain access to the accounts, but Facebook was
not able to provide access.
● SnapChat was used by the Trump Administration (@realdonaldtrump and

@whitehouse), which advised NARA that it was capturing content posted to the
platform. NARA has not yet been able to locate any SnapChat content in the
records transferred to us. SnapChat ultimately banned President Trump from the
platform, and it is not possible to see any previous content. SnapChat advised
NARA that the Trump Administration used the @whitehouse account
approximately five times during four years. However, the administration regularly
used the @realdonaldtrump account. News reports indicate that the account had
1.5 million followers on the platform. We do not know whether direct messaging
was enabled on the account. We are not able to determine to what extent
@realdonaldtrump SnapChat contained unique Presidential records as compared
to content duplicative from other platforms, or purely campaign related
information, which would not have been a Presidential record.
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Please let me or my staff know if you have questions or would like to discuss this issue
further.
Sincerely,
DAVID S. FERRIERO
Archivist of the United States
cc: The Honorable James Comer, Ranking Member
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2/3/23, 4:57 PM First on CNN: Top Trump adviser Stephen Miller testifies to January 6 federal grand jury | CNN Politics
Windom is expected to join the newly created Special Counsel’s Office led by longtime
public corruption prosecutor Jack Smith and will continue leading the investigation into
former President Donald Trump’s role in efforts to impede the transfer of power following
the 2020 election.
Federal investigators have for months sought information from Trump’s inner circle in the
White House, attempting to gather insight into Trump’s state of mind before his supporters
rioted on January 6.
Miller, a former White House speechwriter and senior adviser to Trump, could provide a
firsthand account of the former president’s preparations for his speech at the Ellipse in
Washington on January 6, including how he wanted to inspire his supporters, many of
whom went on to attack the Capitol and disrupt Congress.
Miller was first subpoenaed in the federal criminal investigation months ago.
In April, Miller testified virtually for roughly eight hours before the House select committee
investigating January 6 – a completely separate probe from the criminal investigation
being run by the Justice Department.
According to findings the committee presented at a public hearing in July, Miller spoke to
Trump for several minutes on the morning of January 6 about his planned speech at the
Ellipse. After talking with Miller, Trump added a line to his speech about then-Vice
President Mike Pence, according to the committee’s findings.
The committee said that Miller removed the lines about Pence after having a conversation
with a White House lawyer, Eric Herschmann, who objected to the president’s edits,
according to testimony from Miller. Yet when Trump gave the speech, it included several
references to Pence.
At the time, Trump and others were pressuring Pence to block certification of the election.
Pence ultimately refused and told Trump and others he had no authority to do so. During
the Capitol riot, Trump supporters chanted, “Hang Mike Pence” and broke into restricted
areas of the complex, prompting Pence to be evacuated from the Senate chamber.
In recent months, the January 6 investigation team led by Windom has secured decisions
ordering top Pence aides to testify to the grand jury about some of the most guarded
conversations around Trump after the election. And a parade of top advisers to Trump
have had their cell phones seized or received grand jury subpoenas for testimony and
documents related to the effort to overturn Trump’s electoral loss.
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2/3/23, 5:04 PM Former President Trump Statement on Special Counsel Appointment | C-SPAN.org
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2/3/23, 4:57 PM Former Trump White House counsel and his deputy testify to Jan. 6 criminal grand jury | CNN Politics
before 9 a.m., and he was there for more than five hours. urpura has not responded to
requests for comment. The grand jury proceedings themselves are confidential.
Philbin, whom Purpura also represents, headed into the grand jury area just before the
lunch hour on Friday, staying until about 4 p.m.
Thomas Windom and Mary Dohrmann, prosecutors in the January 6 investigation who are
now to be led by Smith, were also seen walking in with Cipollone.
The investigators are looking at efforts to obstruct the transfer of power at the end of
Trump’s presidency and have obtained testimony from several administration advisers
closest to the former president after the election and as the Capitol was attacked by his
supporters.
RELATED ARTICLE
Trump's classic delay and divert legal strategy is running out of road
CNN previously reported that Chief Judge Beryl Howell of the DC District Court, who
oversees the federal grand juries in Washington, ordered Cipollone and Philbin to provide
additional grand jury testimony this month, following up on their testimony in the fall. The
judge has repeatedly rejected Trump’s privilege claims in the Justice Department’s
criminal investigation of efforts to overturn the 2020 election, according to people briefed
on the matter.
Philbin and Cipollone were both key witnesses to Trump’s actions in the last days of his
presidency. Cipollone repeatedly pushed back on efforts to overturn the 2020 election,
and according to a Senate Judiciary Committee report, he and Philbin opposed a proposal
to replace the attorney general with someone willing to look into false claims of election
fraud.
Previously, the Justice Department compelled top advisers from Vice President Mike
Pence’s office to testify to the grand jury. They had sought to protect Pence in January
2021 from Trump’s pressure campaign to overturn the election.
Earlier this week, Trump White House official Stephen Miller, who worked with Trump on
his speech at the Ellipse, had his own day before the grand jury.
On Thursday, another leg of Smith’s special counsel investigation – into the handling of
documents at Mar-a-Lago after the presidency – was active in the courthouse. At least one
Mar-a-Lago prosecutor was working in the secret grand jury proceedings, as three aides
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2/3/23, 4:57 PM Former Trump White House counsel and his deputy testify to Jan. 6 criminal grand jury | CNN Politics
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2/3/23, 5:10 PM Manhattan Prosecutors Begin Presenting Trump Case to Grand Jury - The New York Times
https://www.nytimes.com/2023/01/30/nyregion/trump-stormy-daniels-grand-jury.html
Manhattan Prosecutors Begin Presenting Trump Case to Grand Jury

The Manhattan district attorney’s decision represents a dramatic escalation of the inquiry, and potentially sets the case on a path toward
criminal charges against the former president.
By William K. Rashbaum, Ben Protess, Jonah E. Bromwich and Hurubie Meko
Jan. 30, 2023 7 MI N R EAD
The Manhattan district attorney’s office on Monday began presenting evidence to a grand jury about Donald J. Trump’s role in paying
hush money to a porn star during his 2016 presidential campaign, laying the groundwork for potential criminal charges against the former
president in the coming months, according to people with knowledge of the matter.
The grand jury was recently impaneled, and the beginning of witness testimony represents a clear signal that the district attorney, Alvin
L. Bragg, is nearing a decision about whether to charge Mr. Trump.
On Monday, one of the witnesses was seen with his lawyer entering the building in Lower Manhattan where the grand jury is sitting. The
witness, David Pecker, is the former publisher of The National Enquirer, the tabloid that helped broker the deal with the porn star, Stormy
Daniels.
As prosecutors prepare to reconstruct the events surrounding the payment for grand jurors, they have sought to interview several
witnesses, including the tabloid’s former editor, Dylan Howard, and two employees at Mr. Trump’s company, the people said. Mr. Howard
and the Trump Organization employees, Jeffrey McConney and Deborah Tarasoff, have not yet testified before the grand jury.
The prosecutors have also begun contacting officials from Mr. Trump’s 2016 campaign, one of the people said. And in a sign that they want
to corroborate these witness accounts, the prosecutors recently subpoenaed phone records and other documents that might shed light on
the episode.
A conviction is not a sure thing, in part because a case could hinge on showing that Mr. Trump and his company falsified records to hide
the payout from voters days before the 2016 election, a low-level felony charge that would be based on a largely untested legal theory. The
case would also rely on the testimony of Michael D. Cohen, Mr. Trump’s former fixer who made the payment and who himself pleaded
guilty to federal charges related to the hush money in 2018.
Still, the developments compound Mr. Trump’s legal woes as he mounts a third presidential campaign. A district attorney in Georgia could
seek to indict him for his efforts to overturn his 2020 election loss in the state, and he faces a special counsel investigation into his removal
of sensitive documents from the White House as well as his actions during the attack on the Capitol on Jan. 6, 2021.
Mr. Bragg’s decision to impanel a grand jury focused on the hush money — supercharging the longest-running criminal investigation into
Mr. Trump — represents a dramatic escalation in an inquiry that once appeared to have reached a dead end.
Under Mr. Bragg’s predecessor, Cyrus R. Vance Jr., the district attorney’s office had begun presenting evidence to an earlier grand jury
about a case focused on Mr. Trump’s business practices, including whether he fraudulently inflated the value of his assets to secure
favorable loans and other benefits. Yet in the early weeks of his tenure last year, Mr. Bragg developed concerns about the strength of that
case and decided to abandon the grand jury presentation, prompting the resignations of the two senior prosecutors leading the
investigation.
One of them, Mark F. Pomerantz, was highly critical of Mr. Bragg’s decision and has written a book that is scheduled to be published next
week, “People vs. Donald Trump,” detailing his account of the inquiry. Mr. Bragg’s office recently wrote to Mr. Pomerantz’s publisher,
Simon & Schuster, expressing concern that the book might disclose grand jury information or interfere with the investigation.
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District Attorney Alvin L. Bragg, center right, jump-started the inquiry last summer into
Mr. Trump’s role in the hush money paid to the porn star Stormy Daniels. Karsten Moran
for The New York Times
Although he balked at charging Mr. Trump over the asset valuations, this is a different case, and Mr. Bragg is now a bolder prosecutor. He
has ramped up the hush money inquiry in the weeks since his prosecutors convicted Mr. Trump’s company in an unrelated tax case, a far
cry from his unsteady early days in office, when Mr. Bragg was under fire from all quarters for unveiling a host of policies designed to put
fewer people behind bars.
For his part, Mr. Trump has denied all wrongdoing and chalked up the scrutiny to a partisan witch hunt against him. He has also denied
having an affair with Ms. Daniels. If Mr. Trump were ultimately convicted, he would face a maximum sentence of four years, though prison
time would not be mandatory.
“This is just the latest act by the Manhattan D.A. in their never-ending, politically motivated witch hunt,” the Trump Organization said in a
statement, adding that reviving the case under what it called a “dubious legal theory” was “simply reprehensible and vindictive.”
A spokeswoman for Mr. Bragg’s office declined to comment. Mr. Pecker’s lawyer, Elkan Abramowitz, did not immediately respond to a
request for comment. A lawyer for Mr. McConney and Ms. Tarasoff declined to comment.
The panel hearing evidence is likely what’s known as a special grand jury. Like regular grand juries, it is made up of 23 Manhattan
residents chosen at random. But its members are sworn in to serve for six months to hear complex cases, rather than for 30 days, as is the
case with panels that review evidence and vote on whether to bring charges in more routine matters.
The investigation, which has unfolded in fits and starts for more than four years, began with an examination of the hush money deal before
expanding to include Mr. Trump’s property valuations. Last summer, Mr. Bragg’s prosecutors returned to the hush money anew, seeking
to jump-start the inquiry after the departures of Mr. Pomerantz and Carey R. Dunne, the other senior prosecutor in the investigation.
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The district attorney’s office, working with the New York attorney general, Letitia James, is also continuing to scrutinize the way that the
former president valued his assets, the people with knowledge of the matter said.
Over the course of the investigation into Mr. Trump, the hush money payment was discussed within the district attorney’s office with such
regularity that prosecutors came to refer to it as the “zombie theory” — an idea that just won’t die.
The first visible sign of progress for Mr. Bragg came this month when Mr. Cohen appeared at the district attorney’s office to meet with
prosecutors for the first time in more than a year. He is expected to return for at least one additional interview in February, one of the
people said.
The lawyer who represented Ms. Daniels in the hush money deal, Keith Davidson, is also expected to meet with prosecutors.
Mr. Trump’s company was instrumental in the deal, court records from Mr. Cohen’s federal case show.
Although Mr. McConney and Ms. Tarasoff were not central players, they helped arrange for Mr. Cohen to be reimbursed for the $130,000
he paid Ms. Daniels, whose real name is Stephanie Clifford.
Allen H. Weisselberg, the company’s former chief financial officer, was also involved in reimbursing Mr. Cohen. And, according to Mr.
Cohen, Mr. Weisselberg was involved in a discussion with Mr. Trump about whether to pay Ms. Daniels.
Mr. Weisselberg is serving jail time after pleading guilty to a tax fraud scheme unrelated to the hush money deal, a case that also led to the
conviction of the Trump Organization in December. Although he was the star witness for the district attorney’s office in that case, Mr.
Weisselberg has never implicated Mr. Trump in any wrongdoing.
Without his cooperation, prosecutors could struggle to link Mr. Trump directly to the misconduct.
In 2018, when Mr. Cohen pleaded guilty to federal campaign finance charges stemming from his role in the hush money payments, he
pointed the finger at Mr. Trump, saying the payout was done “in coordination with, and at the direction of” the president. Federal
prosecutors agreed that Mr. Trump was behind the deal but never charged him or his company with a crime.
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The cooperation of Allen H. Weisselberg, the Trump Organization’s former chief financial
officer, will be key to the prosecution’s case against Mr. Trump. Jefferson Siegel for The New
York Times
There is some circumstantial evidence suggesting that Mr. Trump was involved: He and Mr. Cohen spoke by phone twice the day before
Mr. Cohen wired the payment to Ms. Daniels’s lawyer, according to records in the federal case.
For prosecutors, the core of any possible case is the way in which Mr. Trump reimbursed Mr. Cohen for the $130,000 he paid Ms. Daniels
and how the company recorded that payment. According to court papers in Mr. Cohen’s federal case, Mr. Trump’s company falsely
identified the reimbursements as legal expenses.
The district attorney’s office now appears to be focusing on whether erroneously classifying the payments to Mr. Cohen as a legal expense
ran afoul of a New York law that prohibits the falsifying of business records.
Violations of that law can be charged as a misdemeanor. To make it a felony, prosecutors would need to show that Mr. Trump falsified the
records to help commit or conceal a second crime — in this case, violating a New York State election law, according to a person with
knowledge of the matter. That second aspect has largely gone untested, and would therefore make for a risky legal case against any
defendant, let alone the former president.
Defense lawyers might also argue that Mr. Trump, who was a first-time presidential candidate, did not know that the payments violated
election law. And they could take aim at Mr. Cohen, arguing that he is a convicted criminal who has an ax to grind against Mr. Trump.
In its statement, the Trump Organization noted that “the narrow issue of whether payments to Michael Cohen were properly recorded in a
personal accounting ledger back in 2017 was thoroughly examined” by the federal prosecutors who charged Mr. Cohen and concluded he
had engaged in a “pattern of deception.”
Mr. Pecker’s testimony, however, could bolster the prosecution’s contention that Mr. Trump was involved in planning the hush money
payment. A longtime ally of Mr. Trump, the publisher agreed to look out for potentially damaging stories about Mr. Trump during the 2016
campaign. He agreed to this at a meeting in Mr. Trump’s office.
In October 2016, Ms. Daniels’s agent and lawyer discussed the possibility of selling exclusive rights to her story to The National Enquirer,
which would then never publish it, a practice known as “catch and kill.”
But Mr. Pecker balked at the deal. He and the tabloid’s editor, Mr. Howard, agreed that Mr. Cohen would have to deal with Ms. Daniels’s
team directly.
When Mr. Cohen was slow to pay, Mr. Howard pressed him to get the deal done, lest Ms. Daniels reveal their discussions about
suppressing her story. “We have to coordinate something,” Mr. Howard texted Mr. Cohen in late October 2016, “or it could look awfully bad
for everyone.”
Two days later, Mr. Cohen transferred the $130,000 to an account held by Ms. Daniels’s attorney.
Michael Rothfeld contributed reporting.
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2/3/23, 5:00 PM MyPillow CEO, Trump ally M ke Lindell says FBI seized phone
NATION Hardee's Add Topic
MyPillow CEO, Trump ally Mike Lindell

says FBI issued subpoena, seized phone
at a Hardee's
Scott Gleeson
USA TODAY
Published 9:00 a.m. ET Sept. 14, 2022 Updated 2:36 p.m. ET Sept. 14, 2022
MyPillow CEO Mike Lindell, a prominent Donald Trump supporter, said the FBI seized his
cellphone and he was handed a subpoena from a Colorado grand jury Tuesday while he was
in a Hardee's parking lot in Minnesota.
Lindell, who founded MyPillow in 2004, has been a key ally for Trump and has continued to
protest the 2020 election by pushing baseless claims and conspiracy theories. In May, he was
been banned from Twitter for a second time after trying to use a new account. Lindell’s
original account was permanently banned earlier in the year after he continued to perpetuate
claims that Trump won.
On his podcast, "Frank Speech: The Lindell Report," Lindell detailed how he was issued
the subpoena while waiting for his food and was questioned about a Colorado clerk, Tina
Peters, who is being charged in what prosecutors say was a "deceptive scheme" to breach
voting system technology used across the country. Lindell said the papers he was served
labeled it an "official criminal investigation of a suspected felony" with the use of a federal
grand jury.
Anti-vaxxer, election denier: And, in Michigan, perhaps secretary of state
Critics call it intimidation: Virginia's GOP attorney general sets up 'election integrity
unit.'
Lindell said he also was questioned about his connection to Doug Frank, an Ohio educator
who claims voting machines have been manipulated.
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2/3/23, 5:00 PM MyPillow CEO, Trump ally M ke Lindell says FBI seized phone
Lindell said on the podcast: "Cars pulled up in front of us, to the side of us and behind us,
and I said, ‘These are either bad guys or the FBI.’ Well, it turns out they were the FBI. ... I
want to say this for the record: They were pretty nice guys. None of them had an attitude."
In a separate interview with ABC News, Lindell said three cars with federal agents pulled in
front of his vehicle while he was parked at the fast-food restaurant and handed him the
search warrant for his cellphone. "I've been to many jails," Lindell told the outlet. "I'm not
scared to go to jail. I'm trying to save my country."
"Without commenting on this specific matter, I can confirm that the FBI was at that location
executing a search warrant authorized by a federal judge," FBI spokeswoman Vikki Migoya
told The Associated Press.
Contributing: The Associated Press
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2/3/23, 4:52 PM Records Released In Response to Presidential Records Act (PRA) questions under the Trump Administration | National Archives
Records Released In Response to

Presidential Records Act (PRA) questions
under the Trump Administration
NARA officials are often consulted about the management of presidential and federal
records. The Presidential Records Act governs access to records after the end of an
administration.
The National Archives received records from the Trump Administration, which ended on
January 20, 2021. We are in the process of preserving and providing access to these records,
including all official Trump Administration social media content and deleted posts from
@realDonaldTrump and @POTUS. As records are made available online, they may be
accessed through the trumplibrary.gov website, which is part of NARA. The Trump Library will
begin accepting FOIA requests on January 20, 2026, in accordance with the PRA.
Below are documents concerning records management-related inquiries about the Trump
Administration's presidential records.
Document Title Document

Date
White House letter to the Archivist of the United States : Trump PRA February 16,
Designation 2017
White House memo to all personnel re PRA obligations (attached to Oct. 2 February 22,
Compliance Reminder email) 2017
Letter from Sens. McCaskill and Carper to Archivist David S. Ferriero March 7, 2017
Archivist's response to Sens. McCaskill and Carper March 30,

2017
https://www.archives.gov/foia/pra-trump-admin 1/4
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Document
Document Title
Date
Attachments to March 30, 2017 letter:

Briefing on the PRA
Background on the PRA
Guidance on Presidential Records (publication)
Presidential Records, 44 U.S.C. Chapter 22
Proposed rule on Presidential Records (note: now a final rule)
Notification Procedures
Approved Requests for Waiver of Incumbent President Privilege Review
Approved Requests for Disposal of Incumbent Presidential Records
NSC memo , Feb. 6, 2009 on procedure for access to PRA records of
previous administration
Archivist's memo  to Senior Agency Officials for Records
Management on Records Management Priorities for 2017
Records Express Blog on Records Management of Social Media and
Electronic Records
White House email: Compliance Reminder PRA October 2,

2017
White House email: Monthly Legal Compliance and Ethics Training October 2,
reminder 2017
American Oversight letter : Presidential Advisory Commission on Election January 18,

Integrity and potential alienation of records 2018
NARA response letter to American Oversight: Presidential Advisory January 25,

Commission on Election Integrity and potential alienation of records 2018
White House letter to the Archivist of the United States: Updated Trump January 19,
Designation of PRA Representatives 2021
Letter from House Committee on Oversight and Reform regarding recovery February 9,
of Trump PRA records 2022
Archivist's response to House Committee on Oversight and Reform February 18,

regarding recovery of Trump PRA records 2022
NARA letter to Stefan Passantino, Deputy Counsel to the President
regarding destruction of records, June 14, 2018
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Document Title Document

Date
Archivist's letter to House Committee on Oversight and Reform regarding February 18,
Trump social media records 2022
Archivist's letter to Senate Committee on Homeland Security and February 18,

Governmental Affairs regarding Trump social media records 2022
Acting Archivist's Letter to Evan Corcoran regarding Trump boxes May 10,2022
Former President Trump's Letter to the Acting Archivist of the United June 19 2022
States, Designating PRA Representatives
U.S. House of Representatives Permanent Select Committee on Intelligence August 9,

(HPSCI) Ranking Member Michael R. Turner Letter to Acting Archivist 2022
Acting Archivist's Response Letter to August 9, 2022, Letter from HPSCI August 16,
Ranking Member Michael Turner 2022
U.S. House of Representatives Ranking Member Committee on Oversight August 10,

and Reform, James Comer Letter to Acting Archivist 2022
Acting Archivist's Response Letter to August 10, 2022, Letter from House August 16,
Committee on Oversight and Reform Ranking Member James Comer 2022
NARA Notice from Acting Archivist to All NARA Employees Update on Trump August 24,
Administration Presidential Records 2022
U.S. House of Representatives Ranking Member Committee on Oversight August 30,

Reform, James Comer Letter to Acting Archivist 2022
Acting Archivist's Response Letter to August 30, 2022, Letter from House September
Committee on Oversight Reform Ranking Member James Comer 22, 2022
U.S. Committee on Oversight and Reform Chairwoman, Carolyn B. Maloney September

Letter to Acting Archivist 13, 2022
Acting Archivist's Response Letter to September 13, 2022, Letter from U.S. September
Committee on Oversight and Reform Chairwoman Carolyn B. Maloney 30, 2022
U.S. House of Representatives Committee on Oversight Reform, Ranking October 4,

Member James Comer Letter to Acting Archivist 2022
Acting Archivist's Response Letter to October 4, 2022, Letter from House October 7,
Committee on Oversight Reform Ranking Member James Comer 2022
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Document
Document Title
Date
U.S. House of Representatives Committee on Oversight Reform, Ranking October 14,

Member James Comer and Committee on the Judiciary Ranking Member 2022
Jim Jordan Letter to Acting Archivist
Acting Archivist's Response Letter to October 14, 2022, Letter from House October 25,
Committee on Oversight Reform Ranking Member and Committee on the 2022
Judiciary Ranking Member
The U.S. National Archives and Records Administration

1-86-NARA-NARA or 1-866-272-6272
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2/3/23, 5:00 PM Rep. Scott Perry, Trump ally, says FBI agents seized his cellphone
POLITICS Scott Perry (politician) Add Topic
Pennsylvania Rep. Scott Perry, a Trump

ally, says FBI agents seized his cellphone
Ella Lee
USA TODAY
Published 9:08 a.m. ET Aug. 10, 2022
WASHINGTON — U.S. Rep. Scott Perry, R-Pa., said in a statement that while traveling
Thursday morning with his family, his cellphone was confiscated by three FBI agents
carrying a search warrant.
He compared the action to the Monday search of former President Donald Trump's Mar-a-
Lago home, describing it as “banana republic tactics.”
“They made no attempt to contact my lawyer, who would have made arrangements for them
to have my phone if that was their wish,” Perry said. “I’m outraged — though not surprised
— that the FBI under the direction of Merrick Garland’s DOJ, would seize the phone of a
sitting Member of Congress.”
The circumstances surrounding the seizure were not immediately known. The FBI declined
to comment on the matter. USA TODAY requested comment from Perry's office.
Perry is one of a handful of House Republicans who allegedly helped the former president in
his efforts to overturn the 2020 election.
Jan. 6 committee: Scott Perry, GOP congressman, refuses to cooperate with Jan. 6
investigation committee
Presidential pardons: At least 5 House Republicans sought pardons after Jan. 6,

including Brooks, Gaetz, testimony reveals
The Pennsylvania lawmaker said in January 2021 that he introduced Trump and Department
of Justice lawyer Jeffrey Clark, a top Justice official who was pushing Trump’s baseless
claims of election fraud. Clark drafted a letter urging officials in six states won by Biden to
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2/3/23, 5:00 PM Rep. Scott Perry, Trump ally, says FBI agents seized his cellphone
submit a different group of electors who supported Trump, according to evidence shown by
the Jan. 6 committee.
Former senior Justice Department officials have testified that Perry had “an important role”
in Trump’s effort to try to install Clark as the acting attorney general. Other administration
lawyers rejected the idea as “asinine” and potentially criminal, and Trump relented only
after top Justice Department and White House lawyers threatened to resign in protest.
Perry was one of five Congress members to request a pardon from the former president after
the Jan. 6 Capitol attack, according to testimony from former White House officials during
the Jan. 6 hearings.
Fox News first reported the seizure of Scott's cellphone.
Contributing: Associated Press
https://www.usatoday.com/story/news/politics/2022/08/10/scott-perry-fbi-seized-cellphone/10284599002/ 2/2
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FILED UNDER SEAL
FILED UNDER SEAL


ATTACHMENT A
GOVERNMENT’S REPLY IN FURTHER SUPPORT OF MOTION FOR AN ORDER

TO SHOW CAUSE WHY TWITTER INC. SHOULD NOT BE HELD IN CONTEMPT
FOR FAILURE TO COMPLY WITH A SEARCH WARRANT
Twitter Inc. (“Twitter”) declined to comply with a clear order issued by this Court: a search
warrant requiring Twitter to provide information associated with the Twitter account
“@realDonaldTrump.” ECF No. 4 (the “Warrant”). Twitter acknowledges the Warrant’s validity
but nonetheless refuses to comply unless it is first permitted to disclose the Warrant to former
President Donald J. Trump and the former President is provided with an opportunity to challenge
it. Indeed, Twitter claims that it will refuse to execute the Warrant even were the government to
retract the Non-Disclosure Order (“NDO”)—which the government will not do. The Court should
require Twitter to comply with this Warrant just like any other. Twitter should not be permitted to
dictate a special protocol.
I. Legal Standard
“A civil contempt action is characterized as remedial in nature, used to obtain compliance
with a court order or to compensate for damages sustained as a result from noncompliance.” United
States v. Shelton, 539 F. Supp. 2d 259, 262 (D.D.C. 2008) (citing Evans v. Williams, 206 F.3d
1292, 1294-95 (D.C. Cir. 2000)). The party seeking the finding of contempt has the burden of
establishing by clear and convincing evidence that “(1) there was a clear and unambiguous court
order in place; (2) that order required certain conduct” by Respondent; and (3) Respondent “failed
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to comply with that order.” United States v. Latney’s Funeral Home, Inc., 41 F. Supp. 3d 24, 30
(D.D.C. 2014); see also Food Lion, Inc. v. United Food and Commercial Workers, 103 F.3d 1007,
1016 (D.C. Cir. 1997) (rejecting argument that movant must demonstrate bad faith by contemnor);
Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993). “[A litigant’s]
intent in failing to comply . . . is irrelevant.” CFTC v. Trade Exch. Network Ltd., 117 F. Supp. 3d
22, 26 (D.D.C. 2015).
If the party seeking contempt sanctions makes the above prima facie showing, the burden
shifts to the putative contemnor to produce evidence justifying noncompliance either because of
an inability to comply or good faith and substantial compliance. MasTec Advanced Technologies
v. National Labor Relations Board, No. 1:20-mc-0022, 2021 WL 4935618, at *3 (D.D.C. June 3,
2021). Both good faith and substantial compliance “must be accompanied by adequate detailed
proof.” Int’l Painters & Allied Trades Indus. Pension Fund v. ZAK Architectural Metal & Glass
LLC, 736 F. Supp. 2d 35, 38 (D.D.C. 2010). “To prove good faith substantial compliance, the
contemnor must show that it ‘took all reasonable steps within [its] power to comply.’” SEIU Nat’l
Indus. Pension Fund v. Artharee, 48 F. Supp. 3d 25, 30 (D.D.C. 2014) (alteration in original)
(quoting Int’l Painters, 736 F. Supp. 2d at 40). A party’s good faith may be a factor in determining
whether substantial compliance occurred, and may be considered in mitigation of damages, but
good faith alone is not sufficient to excuse contempt. Food Lion, Inc., 103 F.3d at 1017-18.
II. The Requirements for Holding Twitter in Civil Contempt Are Satisfied Here
A. Twitter Has Failed to Comply with a Clear and Unambiguous Order
The Warrant issued by this Court unambiguously requires Twitter to produce the records
delineated in Attachment B. Twitter knows full well what it must do to comply with the Warrant.
Indeed, on February 5, 2023, Twitter informed the government that it is fully prepared and able to
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“produce data responsive to the Warrant.” Email from George Varghese, Feb. 5, 2023; see Opp.
10. But Twitter states it will comply with the Warrant and provide the data only if the government
agrees not to review that data until this Court decides Twitter’s motion to vacate or modify the
separate NDO. In short, Twitter refuses to comply because it has purportedly decided to “safeguard
the privacy” of a particular user. Opp. 3.
B. Twitter Does Not and Cannot Demonstrate an Inability to Comply or Good

Faith Substantial Compliance
Twitter offers no technical obstacle to complying with the Warrant. Indeed, as noted
above, it appears Twitter has already gathered the responsive information. Instead, Twitter claims
that legal obstacles prevent it from complying with this Court’s order. But Twitter can avail and
has availed itself of an independent legal avenue to challenge the NDO. It has entirely failed to
comply with the Warrant, let alone substantially comply. And even if it had substantially
complied, its invocation of an unfounded executive privilege claim belies its purported good faith.
1. Twitter Cannot Refuse to Comply Based on Potential Privileges

Possessed by Third Parties
Twitter does not dispute that no legal authority permits a third party served with a search
warrant to contest that warrant before it is executed. See Opp. 4; Gov. Mot. at 1, 3. Twitter instead
contends (Opp. 4) that the absence of any legal mechanism to press such a challenge is “entirely
unsurprising” given the “unique situation” implicating “significant and unresolved legal issues”
that the Warrant presents. But the potential for a legal challenge to information obtained through
a search warrant, whether “unique” or not, provides no basis for the recipient of a search warrant
to refuse, on behalf of a third party, to execute it.
The practical consequences of adopting Twitter’s amorphous standard are momentous. As
Twitter observes (Opp. 3-4), Twitter users on whose accounts a search warrant has been executed
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could potentially advance any number of legal arguments, including privilege claims (such as
attorney-client, clergy-penitent, Speech or Debate) and suppression claims under the Fourth
Amendment. Twitter correctly acknowledges (Opp.3) that it lacks standing to assert its users’
“rights and privileges” but nonetheless proceeds to advocate an approach that would permit Twitter
not to comply with a court order directing it to execute a search warrant any time Twitter deems
the situation “unique” (Opp. 4) or determines that the warrant presents “challenging and substantial
issues” (Opp.1). Neither legal authority nor an overarching interest in protecting the privacy of
its users permits Twitter to arrogate such power to itself. See Matter of Warrant to Search a Certain
E-Mail Acct. Controlled & Maintained by Microsoft Corp., 855 F.3d 53, 56 (2d Cir. 2017)
(Carney, J, concurring in the order denying rehearing en banc) (noting that a warrant “issued by a
neutral magistrate judge upon a showing of probable cause . . . satisfied the most stringent privacy
protections our legal system affords”). Here, Twitter seeks to deploy that power to characterize
the Warrant as “unique” and, in contravention of the court’s order, unilaterally impose heightened
requirements for execution of a search warrant where a high-profile client is involved. The
government merely seeks evenhanded application of established legal principles.
Furthermore, the potential for collateral litigation around search warrants under Twitter’s
approach is significant. Every time Twitter deems a case—or a user—“unique,” it could intervene
in a case to delay a criminal investigation. But even Twitter recognizes that that is not how the
law works because it is not permitted to notify users of law enforcement requests where “legally
prohibited from doing so.” Opp. 3. Here, such a prohibition exists, yet Twitter nonetheless seeks
special treatment for this user.
None of the cases that Twitter cites supports its novel approach. See Opp. 5-6. For one,
none of those cases involved a potential executive privilege claim—a claim that lacks merit. See
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infra at 6-9. Additionally, none of those cases involved a pre-enforcement challenge brought by a
third party that held no cognizable privilege in the materials to be seized under the warrant. See,
e.g. In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec.
Means, 11 F.4th 1235, 1238-39 (11th Cir. 2021), cert. denied sub nom. Korf v. United States, 214
L. Ed. 2d 15, 143 S. Ct. 88 (2022) (challenge brought by attorneys “assert[ing] attorney-client and
work-product privilege over at least some of [the] documents”); In re Search Warrant Issued June
13, 2019, 942 F.3d 159, 164-65 (4th Cir. 2019) (challenge brought by law firm invoking attorney-
client and work-product privilege over materials); Klitzman, Klitzman & Gallager v. Krut, 744
F.2d 955, 956 (11th Cir. 1984) (post-search challenge brought by defendant, an attorney, whose
materials were seized); United States v. Vepuri, 585 F. Supp. 3d 760, 762 (E.D. Pa. 2021) (pre-
enforcement challenge to procedure for review of potentially privileged materials brought by the
defendant); United States v. Ritchey, No. 21-cr-6, 2022 WL 3023551, at *1-*2 (S.D. Ohio June 3,
2022) (post-search challenge to filter protocol). 1 In each of those cases, moreover, the search
warrant was executed, and the parties then litigated whether any right or privilege precluded full
government access to them. In short, Twitter can point to no case approving its course of action
here: refusing to execute a valid search warrant given the potential for a privilege claim.
Nor does Twitter’s attack (Opp. 11-14) on Google LLC v. United States, 443 F. Supp. 3d
447 (S.D.N.Y. 2020), aid its argument. As relevant here, Google stands for the uncontroversial
principle—borne out by the briefing schedule this Court has now adopted—that the Warrant and
1
The Third Circuit’s decision in In re Search Warrant (Sealed), 810 F.2d 67, 70-71 (3d Cir. 1987),
which involved a physician seeking to protect the privacy rights of his patients, is nothing like
Twitter’s relationship to its users—as Twitter itself recognizes. See Opp. 3 (recognizing the
“medical professional and patients” privilege); see also United States v. Westinghouse Elec. Corp.,
638 F.3d 570, 572 (3d Cir. 1980) (similar approach involving “privacy interests of employees in
their medical records”).
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the NDO do not travel together. Id. at 455. Twitter criticizes Google’s reasoning with respect to
the decision to deny the movant’s efforts—similar to Twitter’s here—to vacate or modify the
NDO. Whatever the merits of that reasoning, Twitter’s obligation to comply with a clear court
order does not turn on it. To be sure, the court in Google relied largely on its analysis rejecting
the motion to vacate the NDO, which in turn mooted Google’s motion to stay execution of the
warrant. But even if Twitter succeeded on its NDO challenge, Twitter identifies no case for the
proposition that enjoining execution of the Warrant would also be appropriate. 2
2. In Any Event, Executive Privilege Provides No Basis for Twitter to

Refuse Compliance
Even if Twitter could rely on a third party’s potential privilege claims as a basis to refuse
compliance with a search warrant, it fails to demonstrate a colorable claim of executive privilege
here that could justify such non-compliance. The executive-privilege claims that Twitter
speculates might be available to the former President are entirely without merit.
The former President would have no basis to challenge the government’s access to his
Twitter account based on executive privilege because the warrant requires access to the materials
by the Executive Branch itself. Executive privilege is “inextricably rooted in the separation of
powers under the Constitution,” United States v. Nixon, 418 U.S. at 708, and it “derives from the
supremacy of the Executive Branch within its assigned area of constitutional responsibilities,”
Nixon v. Gen. Servs. Admin., 433 U.S. 424, 447 (1977). The privilege exists “not for the benefit of
the President as an individual, but for the benefit of the Republic.” Id. at 449. Consistent with the
privilege’s function of protecting the Executive Branch as an institution, it may be invoked in
2
Twitter’s reliance on two First Amendment prior restraint cases (Opp. 14) is inapposite. Among
other things, neither case involved an ongoing criminal investigation where, as here, the
government had obtained a search warrant.
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appropriate cases to prevent the sharing of materials outside the Executive Branch—i.e., with
Congress, the courts, or the public. Cf. Trump v. Thompson, 142 S. Ct. 680, 680 (2022) (per curiam)
(noting unresolved questions about whether and under what circumstances a former President can
invoke the privilege to prevent such “disclosure”—there, to Congress). But the separation-of-
powers principles that form the basis for executive privilege provide no justification to prevent the
Executive Branch itself from accessing the materials.
Twitter cites no case in which executive privilege has been successfully invoked to prohibit
the sharing of documents within the Executive Branch, and the government is aware of none. To
the contrary, in what appears to be the only case in which such an assertion has ever been made,
Nixon v. GSA, the Supreme Court rejected former President Nixon’s assertion that a statute
requiring the General Services Administration to take custody of and review recordings and
documents created during his presidency violated either the separation of powers or executive
privilege. 433 U.S. at 433-36. Addressing the separation of powers, the Court emphasized that the
Administrator of the GSA “is himself an official of the Executive Branch,” and that the GSA’s
“career archivists” are likewise “Executive Branch employees.” Id. at 441. The Court rejected the
former President’s invocation of privilege against the statutorily required review by the GSA,
describing it as an “assertion of a privilege against the very Executive Branch in whose name the
privilege is invoked.” Id. at 447-48. The Court explained that the relevant question was whether
review by Executive Branch officials within the GSA would “impermissibly interfere with candid
communication of views by Presidential advisers.” Id. at 451. And it held that the question was
“readily resolved” because the review in question was “a very limited intrusion by personnel in
the Executive Branch sensitive to executive branch concerns.” Id.
Indeed, when the former President previously sought to prevent the Department of Justice
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from accessing documents from his presidency on the basis of executive privilege, the United
States National Archives and Records Administration (“NARA”) flatly rejected that attempt. 3
After NARA found documents with classified markings within 15 boxes of presidential documents
that the former President provided to NARA and notified the Department of Justice, the former
President sought to prevent the Department of Justice from accessing the materials on the basis of
executive privilege. See Letter from Debra Steidel Wall, Acting Archivist of the United States, to
Evan Corcoran (May 10, 2022) at 1, available at https://www.archives.gov/files/foia/wall-letter-
to-evan-corcoran-re-trump-boxes-05.10.2022.pdf. NARA rejected those efforts, noting that with
respect to the former President’s attempt to assert executive privilege to prevent others within the
Executive Branch from reviewing the documents, its decision was “not a close one.” Id. at 3.
The issue here is similarly not close, and Twitter’s speculation is even further afield given
the extreme unlikelihood that the former President’s Twitter account will contain confidential
communications subject to executive privilege. The presidential-communications privilege, which
appears to be the only form of executive privilege to which Twitter refers in its brief, applies to
communications involving the President and his immediate White House advisers (and their staff)
that “reflect presidential decisionmaking and deliberations and that the President believes should
remain confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The privilege applies
only to “communications in performance of a President’s responsibilities of his office and made
in the process of shaping policies and making decisions.” GSA, 433 U.S. at 449 (internal citation
and quotation omitted). Twitter provides no basis to conclude that the former President used his
Twitter account—rather than face-to-face conversations, written memoranda, or even electronic
3
At the time Nixon v. GSA was litigated, the National Archives was a part of the General Services
Administration. In 1985, Congress created the National Archives and Records Administration as
a separate agency.
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communications through government accounts—to communicate confidentially with his advisors
about presidential matters. Indeed, as the former President has acknowledged, he used the account
during his presidency “as a channel for communicating and interacting with the public about his
administration.” Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 231 (2d Cir.
2019), cert. granted, judgment vacated sub nom. Biden v. Knight First Amend. Inst. At Columbia
Univ., 141 S. Ct. 1220 (2021) (emphasis added). Twitter’s supposed concern about potential
executive-privilege issues provides no basis to refuse compliance with the valid warrant here.
III. The Court Should Enter an Order Imposing Monetary Sanctions Until Twitter
Complies with the Warrant
Twitter’s failure to comply with a clear and unambiguous order warrants a finding of
contempt and coercive sanctions.
“Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for
either or both of two purposes; to coerce the defendant into compliance with the court’s order, and
to compensate the complainant for losses sustained.” United States v. United Mine Workers of
America, 330 U.S. 258, 303-304 (1947) (citation omitted). A “per diem, coercive fine . . . is the
epitome of a civil sanction” for contempt. Pigford v. Veneman, 307 F. Supp. 2d 51, 57 (D.D.C.
2004). “[F]ines exert a constant coercive pressure, and once the jural command is obeyed, the
future, indefinite, daily fines are purged.” Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821, 829 (1994). Contempt sanctions “must be sufficiently hefty such that the
contemnors are induced to comply and the Court ‘must then consider the character and magnitude
of the harm threatened by continued contumacy, and the probable effectiveness of any suggested
sanction in bringing about the result desired.’” In re Grand Jury Investigation of Possible
Violations of 18 U.S.C. § 1956 & 50 U.S.C. § 1705, Misc. Nos. 18-175, 18-176, 18-177 (D.D.C.
-9-
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at 304).
To maximize the likelihood of obtaining Twitter’s rapid compliance with this Court’s
decision, the government respectfully requests that the Court impose escalating daily fines. See
Pigford, 307 F. Supp. 2d at 54 (adopting fine of $1,000 per day for first month of contempt,
increasing by $1,000 for each subsequent month the contempt continued unpurged). The amount
of any fine should be commensurate with the gravity of Twitter’s non-compliance and Twitter’s
ability to pay. 4 See, e.g., NLRB v. Local 3, International Brotherhood of Elec. Workers, 471 F.3d
399, 405 (2d Cir. 2006) (affirming a per-violation prospective compliance fine plus an additional
$5,000 per day for each day that a violation continues); In re Grand Jury Investigation of Possible
Violations of 18 U.S.C. § 1956 & 50 U.S.C. § 1705, 2019 WL 2182436, at *5 (explaining that a
“[d]aily imposition of a $50,000 fine is fitting” for “multi-billion-dollar banks disregarding an
order to produce records or a witness essential to an investigation into a state-sponsor of terrorism’s
proliferation of nuclear weapons”); id. (“Courts previously have approved the amount of $50,000
per day as an appropriate sanction for other well-resourced corporations and international banks.”)
(citing multiple cases in support); see also Pigford, 307 F. Supp. 2d at 54.
4
As of October 2022, Twitter was valued at over $40 billion. See Kate Conger & Lauren Hirsch,
Elon Musk Completes $44 Billion Deal to Own Twitter, New York Times (Oct. 27, 2022);
available at https://www.nytimes.com/2022/10/27/technology/elon-musk-twitter-deal-
complete.html.
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JACK SMITH
Special Counsel

Gregory Bernstein (California Bar 299204)
Assistant Special Counsels
(202) 714-9376
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* * * * * * * * * * * * * * * *
In the Matter of The Search of ) Case No. 23-SC-31
Information That is Stored )
at Premises Controlled by )
Twitter, Inc. )
)
UNITED STATES OF AMERICA, ) February 7, 2023
Interested Party, ) 1:32 p.m.
) Washington, D.C.
TWITTER, )
Interested Party. )
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SEALED
TRANSCRIPT OF HEARING
BEFORE THE HONORABLE BERYL A. HOWELL,
UNITED STATES DISTRICT COURT CHIEF JUDGE
APPEARANCES:
FOR THE UNITED STATES:

GREGORY BERNSTEIN
JAMES PEARCE
THOMAS WINDOM
MARY DOHRMANN
Office of Special Counsel
950 Pennsylvania Avenue NW
(202) 804-7000
FOR TWITTER: GEORGE P. VARGHESE

ARI HOLTZBLATT
WHITNEY RUSSELL
BENJAMIN A. POWELL
WilmerHale
Washington, DC 20037 USA
(202) 663-6964
Court Reporter: Elizabeth Saint-Loth, RPR, FCRR

Official Court Reporter
Proceedings reported by machine shorthand.

Transcript produced by computer-aided transcription.
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1 P R O C E E D I N G S
2 THE COURTROOM DEPUTY: Matter before the Court,
3 Case No. 23-SC-31, In the matter of the search of
4 information that is stored at premises controlled by
5 Twitter, Inc. Interested parties: United States of America
6 and Twitter, Inc.
7 Counsel, please come forward and state your names
8 for the record, starting with the government.
9 MR. BERNSTEIN: Good afternoon, Your Honor.
10 Greg Bernstein, Thomas Windom, Mary Dohrmann, and
11 James Pearce for the United States.
12 THE COURT: All right. Just so you all know, if
13 you are feeling okay today, and you are fully vaccinated,
14 when you are speaking you can remove your masks so we can
15 all hear you better.
16 During the pandemic, I guess, it was nice that I
17 have so much strong air conditioning in my courtroom, but it
18 does create a lot of white noise. It's a lot easier to
19 understand you if you are speaking without your mask.
20 For Twitter.
21 MR. VARGHESE: Good afternoon, Your Honor.
22 My name is George Varghese on behalf of Twitter. I am
23 joined today by my colleagues, Ari Holtzblatt, Ben Powell --
24 THE COURT: Okay, wait. Slow down.
25 So you are Mr. Varghese. Are you going to be
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1 mostly speaking today, Mr. Varghese.
2 MR. VARGHESE: Yes, Your Honor.
3 THE COURT: Who else is there?
4 MR. VARGHESE: Ari Holtzblatt.
5 THE COURT: Ari Holtzblatt. Which one of you is
6 that?
7 MR. HOLTZBLATT: I am, Your Honor.
8 MR. VARGHESE: Ben Powell.
9 THE COURT: Ben Powell. P -- Powell with a "P"?
10 MR. POWELL: Yes, Your Honor.
11 THE COURT: Got it.
12 MR. VARGHESE: And Whitney Russell.
13 THE COURT: All right. Who is the personal
14 representative from Twitter?
15 MR. VARGHESE: We don't have a personal
16 representative from Twitter.
17 THE COURT: I thought my order directed that there
18 be a personal representative from Twitter here.
19 MR. VARGHESE: I don't believe the minute order
20 did, Your Honor.
21 THE COURT: Okay. Maybe the government wanted a
22 personal representative?
23 MR. VARGHESE: That's correct, Your Honor. I
24 believe their draft order did. But, in the minute order,
25 the Court did not --
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1 THE COURT: Okay. So I only have the attorneys --
2 outside counsel attorneys for Twitter sitting at counsel
3 table?
5 THE COURT: Okay. Just so I know who is who.
6 All right. So we're here, first, on the
7 government's motion for issuance of the order to show cause
8 why Twitter should not be held in contempt; although, I know
9 that we have this other pending motion filed by Twitter, and
10 some of the conversation today will probably address both.
11 And even though I gave briefing -- a briefing
12 schedule for the First Amendment challenge to the NDO, that
13 doesn't require briefing to be done until the end of
14 February -- towards the end of February. So I would like to
15 focus on the order to show cause for contempt first;
16 although, there is not that much difference between a motion
17 for an order to show cause why a party should be held in
18 contempt and a contempt hearing itself.
19 So let me just point out that under our local
20 Criminal Rule 6.1: All hearings affecting a grand jury
21 proceeding shall be closed, except for contempt proceedings
22 in which the alleged contemnor requests a public hearing.
23 I am confident the government is not requesting a
24 public hearing.
25 Is Twitter requesting a public hearing today?
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1 MR. VARGHESE: No, Your Honor.
2 THE COURT: Okay. Perfect. Because that would
3 have been denied, but that saves me time.
4 All right. So let me just put on the table some
5 of the issues that I want to discuss today so you all --
6 we're all lawyers. None of us like to be surprised. Let me
7 just tell you the things that I am puzzling over, generally.
8 The precise deadline for the search warrant's
9 compliance given the back and forth between the parties, the
10 formal or informal extensions that the government gave.
11 Second, I need to be clear about what Twitter has
12 seen of the warrant package. I don't know how many of you
13 at Twitter's table have ever been prosecutors; but you know
14 the warrant is a very thin little part -- important part,
15 critical part, it is a court order -- a thin part of a
16 warrant package. I am not clear from this record what
17 Twitter has seen and what it hasn't. It doesn't know very
18 much at all, although it thinks it does, about the
19 government's investigation; but it certainly doesn't know, I
20 don't think, very much about the warrant that I signed and
21 all of its parts. But I need to be clear about what it does
22 and doesn't know about that.
23 Third, Twitter's thrown up "NARA," and I need to
24 know where there is an overlap or not between what the
25 search warrant is demanding and requiring Twitter to turn
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1 over, and what NARA holds now or potentially in the future.
2 Not that that's all relevant here. But I actually want to
3 be clear in my own mind in addressing, if not today, with
4 respect to the NDO challenge -- the merits of Twitter's
5 arguments.
6 Fourth, Twitter's standing here to raise any
7 issues as to the NDO or the warrant and the account user's
8 privileges, and whether those concerns -- even if Twitter
9 doesn't have standing -- warrant, on consideration, a
10 rewrite of the Court order, which is what Twitter is
11 actually demanding here, which is a rewrite of the warrant.
12 And then, finally, whether Twitter has acted in
13 good faith, and what is necessary for enforcement and
14 compliance with the Court ordered warrant.
15 Those are, generally, the topics I plan to
16 discuss.
17 Who is arguing on behalf of the government?
18 MR. BERNSTEIN: Greg Bernstein, Your Honor.
19 THE COURT: Okay. Mr. Bernstein, step forward to
20 the podium.
21 Okay. So the warrant, by its terms, is pretty
22 explicit about saying that the warrant issued on
23 January 17th gave ten days for the warrant returns to be
24 delivered to the government, which brings us to -- if my
25 math is right, and I am a mere J.D., January 27th -- which
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1 is -- again, if my math is right -- about ten days ago; ten
2 days --
3 MR. BERNSTEIN: Yes, Your Honor.
4 THE COURT: -- in a matter of national importance
5 pending before the special counsel's office.
7 THE COURT: Okay. But then, when I look at these
8 negotiations going back and forth between Twitter and the
9 government -- I guess it was you on the other end of the
10 communications with the Twitter general counsel or counsel?
11 MR. BERNSTEIN: Yes, Your Honor. I was the one
12 speaking with who identified as the
13 most senior counsel for Twitter.
14 THE COURT: Okay. By my review back and forth of
15 this, you gave Twitter an extension -- almost until
16 February 1 -- for Twitter to provide authority, I guess, for
17 refusing to comply with the warrant on a timely basis. But
18 it seemed like the government was giving little extensions
19 back and forth.
20 So when is it that the government expected this
21 warrant, given that back and forth with Twitter's counsel --
22 when did the government expect Twitter to comply?
23 MR. BERNSTEIN: So, Your Honor, just to be clear,
24 the order itself, which I don't think the government has any
25 authority to modify unilaterally -- just as Twitter
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1 doesn't -- ordered the production of these records by
2 January 27th. The negotiations to which Your Honor
3 refers --
4 THE COURT: Yes. But in terms of fairness and
5 equity and bad-faith measurements, I am looking at
6 compliance here, in terms of and assessing what the contempt
7 penalty should be; I look at the amount of the delay.
9 THE COURT: Ten days is a long time. But I am not
10 sure that ten days is the right assessment of that delay.
11 MR. BERNSTEIN: I can give Your Honor a timeline
12 of the discussions --
13 THE COURT: Don't. Don't. The back and forth is
14 ridiculous. What's the government -- I mean, I don't have
15 time for that, and I have read it -- between the declaration
16 and the government's papers, and the back and forth.
17 What is the bottom line? When did the government
18 expect, as a final drop dead date, for the warrant returns
19 to be put in your hands?
20 MR. BERNSTEIN: It's January 27th.
21 And the request for authority by February 1 was
22 not to say: We are extending the deadline of the warrant
23 which, of course, is Your Honor's order. It was to say:
24 Give us authority for your position by this time or we
25 intend to pursue court intervention.
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1 THE COURT: All right. Now let's turn to the
2 warrant package. Okay.
3 So the warrant package consisted of an incredibly
4 lengthy affidavit, the warrant itself. The warrant itself
5 had Attachment A, property to be searched; it had
6 Attachment B, particular things to be searched; and
7 Attachment B had different parts.
8 Now, certainly, Twitter hasn't seen the
9 application part of the package; it hasn't seen the
10 affidavit part of the package. Is that right?
12 THE COURT: That's correct?
13 MR. BERNSTEIN: That's correct, Your Honor.
14 THE COURT: Certainly, Twitter has seen the
15 warrant and Attachment A; is that correct?
17 THE COURT: And out of Attachment B, has Twitter
18 seen any part other than Part 1?
19 MR. BERNSTEIN: No, Your Honor.
20 THE COURT: Okay. Well, that's sort of what I
21 thought, but I wanted to make sure.
22 So Twitter, as it sits here, has zero idea and
23 zero affirmation about whatever filter protocol or procedure
24 there is attached to this warrant in terms of processing any
25 warrant returns; is that correct?
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2 THE COURT: And if they know, it's not from the
3 government.
4 MR. BERNSTEIN: I'm sorry. Can you repeat the
5 question, Your Honor?
6 THE COURT: They wouldn't know from the
7 government.
8 MR. BERNSTEIN: They would not know from the
9 government, Your Honor, that's correct.
10 THE COURT: All right. So to the extent that
11 Twitter is standing here, as I understand their position,
12 trying to protect any privilege of the account user with
13 this solution of providing prior notice to the account user,
14 they are taking no account because they can't -- because
15 they haven't seen it and they don't know anything about any
16 filter protocol that might be attached to this warrant.
17 MR. BERNSTEIN: That's correct, Your Honor. They
18 do not know about any filter protocol that could or could
19 not be attached to the warrant.
20 THE COURT: Got it. Okay.
21 I just want to make it clear, when providers step
22 in here and take up my time on what should be a simple
23 processing of a warrant, exactly how much in the dark they
24 are. Okay.
25 Now let's turn to what came up in your discussions
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1 with the Twitter lawyer, in-house lawyer, and was also put
2 in the lawyer's declaration. I also saw in Twitter's
3 papers, here, that Twitter believes that the government
4 could obtain all of the information it's seeking in the
5 search warrant from NARA, the good old archivist of the
6 United States.
7 So does the government know whether NARA has all
8 of the information sought by this search warrant directly
9 from Twitter?
10 MR. BERNSTEIN: We have spoken to NARA after we
11 had these communications with Twitter. And they represented
12 to us that there is not complete overlap between the
13 Attachment B and the records in their possession.
14 THE COURT: Okay. Do you know what they have
15 versus what the warrant is seeking?
16 MR. BERNSTEIN: Could I have one moment to confirm
17 with co-counsel, Your Honor?
18 THE COURT: Yes.
19 And let me just say, it may be that Twitter has
20 better information on that because Twitter supposedly
21 provided the information to NARA. But go ahead.
22 (Whereupon, government counsel confer.)
23 MR. BERNSTEIN: Thank you, Your Honor.
24 So, in the preliminary conversation we had with
25 counsel for NARA, their representation was more, on a
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1 general level, that the data that NARA had in its possession
2 was not a complete overlap with what we would have in the
3 Attachment B. And I believe that Twitter's opposition also
4 makes reference to much of the data being in there as --
5 THE COURT: I know. I am going to talk to them
6 about that. I saw that too. It was pretty clear. Not a
7 complete overlap -- not the briefing. The briefing was a
8 little bit more vague about that but, certainly, the
9 declaration was more precise; that they said much of the
10 information required under the warrant was turned over to
11 NARA without saying a complete overlap.
13 THE COURT: But do you know what is missing from
14 NARA?
15 MR. BERNSTEIN: We are not in a position
16 ourselves, at this moment, to make a representation --
17 THE COURT: So, Twitter, you be ready to answer
18 that.
19 Okay. So, now, the Presidential Records Act -- I
20 am going to read you part of this -- provides, in relevant
21 part, quote: When the archivist determines under this
22 chapter to make available to the public any presidential
23 record that has not previously been made available to the
24 public, the Archivist shall promptly provide notice of such
25 determination to the former President during whose term of
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1 office the record was created. That's at 44 U.S.C. Section
2 2208(a)(1)(A)(i).
3 Is that provision the basis for the government's
4 belief -- and I think you made the representation to the
5 Twitter counsel -- that the government would have to inform
6 the former President before they were able to get this
7 information from NARA? You couldn't do it covertly.
8 Is that the specific provision that you are
9 relying on?
10 MR. BERNSTEIN: I am not sure that's the specific
11 provision. But I do know that -- having spoken to NARA
12 counsel, they have made it clear to us that there will be
13 notice to the President if we attempt to obtain this
14 evidence from them directly.
15 THE COURT: And you heard that from whom?
16 MR. BERNSTEIN: That's Gary Stern, the general
17 counsel of NARA, Your Honor.
18 THE COURT: But you didn't find out from
19 Gary Stern what provision of the Presidential Records Act he
20 was relying on, and whether it was this one in particular?
22 THE COURT: Well, I mean, Gary Stern is a great
23 lawyer, but I would still ask him for a citation.
24 Because, if it's this provision, I really am
25 puzzled -- when there is a request to NARA on a covert basis
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1 pursuant to a warrant or a subpoena to produce information,
2 that's not producing it to the public. So I am not sure why
3 that would require notice -- an advance notice to the
4 privilege -- to the former President, whose records they are.
5 MR. BERNSTEIN: We will go back with Gary Stern
6 and hash that out, Your Honor.
7 As a practical matter, that has been the process
8 thus far; that, when we have made these requests for
9 information in the possession of NARA, that there's been
10 notification, and the President has had -- the former
11 President's had some opportunity to challenge that process.
12 THE COURT: Okay. Even when the government is
13 serving a subpoena? So not for public dissemination?
15 THE COURT: All right. Well, I am sort of
16 curious. Maybe, when you are litigating the rest of this,
17 you can talk to Mr. Stern who knows the Presidential Records
18 Act, I know, inside and out. He can educate all of us
19 because, as I look at the PRA, I am not sure where he is
20 getting that.
21 MR. BERNSTEIN: We'll find out, Your Honor.
22 THE COURT: Okay. But neither here nor there, in
23 some ways.
24 But -- and also, I actually have a question about
25 whether this Twitter account used by the former President
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1 and his staff, I guess, is even subject to the Presidential
2 Records Act.
3 I mean, the Presidential Records Act says: The
4 President may not create or send a presidential record using
5 a nonofficial electronic message account unless the
6 President copies an official electronic messaging account of
7 the President, in the original creation or transmission of
8 the presidential record; or forwards a complete copy of the
9 presidential record to an official electronic messaging
10 account of the President not later than 20 days after the
11 original creation or transmission of the presidential
12 record. That's under 44 U.S.C. Section 2209(a)(1) through (2).
13 So if that provision of the Presidential Records
14 Act wasn't complied with by the former President with
15 respect to his Twitter account activity, does this mean that
16 this Twitter account activity falls outside the protection
17 of the Presidential Records Act, doesn't even qualify as a
18 presidential record, which, of course, would also have an
19 impact on any assessment of whether any contents of his
20 Twitter account are entitled to any executive privilege.
21 So have you conferred with NARA about whether the
22 Twitter account is even subject to the Presidential Records
23 Act?
24 MR. BERNSTEIN: I can confirm with co-counsel
25 whether we have had conversations with NARA about that.
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1 The representation that we received from
2 Twitter -- and they can speak more about this -- is that --
3 I believe is that the White House made some effort to
4 designate part or all of the Twitter account as a
5 presidential record and turn it over to NARA. But I think
6 that counsel for Twitter might be in a better position to
7 talk about what happened with respect to the President's --
8 the former President's Twitter account and how it ended up
9 going into the possession of NARA.
10 THE COURT: Let me step back for a minute.
11 What constitutes a presidential record subject to
12 the PRA is pretty defined. And that's helpful when you're
13 defining what a presidential record is and it's, certainly,
14 helpful when you are making an assessment of a presidential
15 privilege.
16 So do you think this is a rabbit hole or worth
17 inquiring about?
18 MR. BERNSTEIN: Well, I wouldn't necessarily
19 characterize it as a "rabbit hole." But I think, for
20 purposes of today's hearing, whether there was an
21 alternative route for the government to obtain these
22 records, yes or no --
23 THE COURT: Is beside the point, I agree.
24 But as I said, part of this hearing is going to
25 be -- as you saw in my scheduling order, I am only going to
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1 have a hearing on the NDO if it's necessary; and I am trying
2 to make it not necessary by doing that hearing now. And
3 actually, you know, in some ways, it's a constructive way to
4 hold a hearing; have the hearing so you can see what I am
5 puzzling over so you can address it in your briefing.
6 MR. BERNSTEIN: Then that's fair, Your Honor.
7 I think for the purpose of today -- perhaps beside the
8 point. For the purpose of the NDO briefing, it's helpful to
9 hear Your Honor's thoughts on this so that we can address
10 them before that hearing actually comes up.
11 THE COURT: And you are welcome to tell me in your
12 briefing that this is a rabbit hole, not relevant, or
13 whatever. But, I mean, I am just looking at this and
14 puzzling over how the PRA serves as any kind of valid
15 defense to compliance with a search warrant and trying to
16 figure out what the basis of that is at all when, you know,
17 I am not confident that the PRA -- that whatever was turned
18 over to NARA is what is being called for in the warrant. I
19 am not confident that the Twitter account is even subject to
20 the PRA, let alone is a presidential record. So I'd just
21 invite the government to help me figure that out. Maybe you
22 will do it in your briefing.
23 Okay. So now let's turn to more specific
24 executive privilege concerns, which is why Twitter wants to
25 rewrite the warrant to turn it from a covert warrant to an
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1 advance notice warrant and, basically, not disclose any
2 information to the government until, I guess, the former
3 President's had an opportunity -- or the account user's had
4 an opportunity to decide whether he wants to challenge the
5 warrant and then, if so, to challenge the warrant, and then
6 assert whatever privileges he has.
7 Part of the reason Twitter says they're doing that
8 here is because -- they call the issues concerning executive
9 privilege difficult and novel questions.
10 Does the government find these issues difficult
11 and novel or is that just Twitter's take on these questions,
12 because it hasn't been living with them for as long as the
13 government has been?
14 MR. BERNSTEIN: I have a few responses to that,
15 Your Honor, and I will be succinct here.
16 First -- one factual, one legal. First, for
17 factual context, Twitter has proffered no evidence -- and I
18 don't think the government is aware of any evidence -- that
19 the former President used his private Twitter account to
20 engage in communications with his senior advisors about
21 matters that were vital to presidential decisionmaking.
22 There is no evidence in the record whatsoever --
23 and I don't think Twitter is going to proffer any
24 evidence -- to show that there is a serious possibility that
25 we are going to find executive privileged communications on
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1 his private Twitter account.
2 As a legal matter, the case law -- and I am
3 referring to GSA versus Nixon right now -- makes it clear
4 that it's not the same as, say, an attorney-client issue
5 where communications that are protected by the
6 attorney-client privilege don't belong to the government or
7 don't belong to the executive branch. In this case, the
8 assertion here is that these are communications that are
9 privileged that belong to the executive branch. Of course,
10 we are the executive branch. So there can't be any unlawful
11 disclosure of communications that are protected by the
12 executive privilege to the executive branch itself.
13 That aside, Your Honor -- again, I think this is
14 what Your Honor was alluding to at the beginning of the
15 hearing. The issuing judge, which is Your Honor, the Chief
16 Judge in this district already considered these issues,
17 already hashed these issues out when Your Honor issued a
18 warrant, a clear order to Twitter to produce the
19 Attachment B records within ten days.
20 THE COURT: A clear order. They haven't seen the
21 full order. They haven't seen the full order but --
22 MR. BERNSTEIN: But they have seen the order to
23 produce the records --
24 THE COURT: Correct.
25 MR. BERNSTEIN: -- the unambiguous order to
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1 produce the records.
2 THE COURT: They have seen the only part of it for
3 which they're responsible?
4 MR. BERNSTEIN: That's correct.
5 And the response to that has been, "Thank you, no
6 thank you." We have decided, on our own timetable, one that
7 we are -- seem to be implementing for what they consider to
8 be a quote-unquote unique client.
9 THE COURT: Right. Well, it's my view, just so,
10 Twitter, you are clear: You may think these are difficult
11 and novel issues. For the others of us in this room, they
12 are not.
13 All right. On your last point, that it's hard to
14 imagine -- to paraphrase you -- it's hard to imagine that
15 the President would use a Twitter account to engage in the
16 types of confidential presidential decisionmaking issues
17 that are subject to executive privilege.
18 But Twitter apparently has these communications
19 mechanisms for direct messaging, and so on. So is it
20 remotely possible that the former President could have
21 communicated with his closest advisors about presidential
22 decisionmaking on Twitter?
23 MR. BERNSTEIN: Is it theoretically possible that
24 the President sent a direct message to, say, National
25 Security Advisor Robert O'Brien about invading Iran over a
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1 direct message over Twitter? It's theoretically possibly.
2 I am aware of no evidence in the record or from the
3 investigation that would even remotely support that
4 assertion.
5 THE COURT: So it's your view that should -- that
6 the mere fact that these were presidential communications on
7 Twitter, which -- from Twitter's perspective means: Hey, it
8 could be subject to executive privilege. From the
9 government's perspective means: You have got to be kidding;
10 it's most likely nothing there is executive privilege.
11 MR. BERNSTEIN: That would --
12 THE COURT: We just have two different
13 perspectives on how important the Twitter activity was to
14 the conduct of presidential decisionmaking.
15 MR. BERNSTEIN: That there were communications
16 between the President and senior advisors that were vital to
17 presidential decision-making, that was our reaction.
18 And, again, Twitter has this data in its
19 possession, and they haven't made any kind of representation
20 that they have specifically seen a communication that would
21 fit that bill.
22 THE COURT: Although it would be pretty ironic,
23 isn't it, if Twitter, which is trying to stand up and
24 protect the privacy and executive privilege of a former
25 President, went scouring through it to find that evidence?
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1 But I guess it could, which also is something that one could
2 take into account --
3 MR. BERNSTEIN: Well, Your Honor --
4 THE COURT: -- in assessing the viability of an
5 executive privilege defense on Twitter's part to delay in
6 executing a warrant.
7 MR. BERNSTEIN: Well, that is true. But, Your
8 Honor, they have inserted themselves in this process in
9 contravention of Your Honor's order.
10 They have decided that they will not comply with
11 the order even though they understand it and they are not
12 challenging the validity of the warrant itself. And they
13 have come to this argument without any ammunition to suggest
14 that there is any potential for this Twitter account to
15 contain communications that are protected by the executive
16 privilege. That is the problem here, that this is an order
17 to show cause. And they are not coming forth with any
18 evidence to show that they are unable to comply, that they
19 have substantially complied, or that the foundation of their
20 argument for why they're not complying has any basis, in
21 fact, whatsoever.
22 THE COURT: Twitter has also raised what they
23 call -- and I quote: The issue of executive privilege in
24 this context, including what limitations might need to be
25 imposed on derivative use of private presidential
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1 communications. That's in the Twitter motion, at 12 through
2 13.
3 What does the government make of this term
4 "derivative use" and this whole argument?
5 MR. BERNSTEIN: I think what they're trying to say
6 is that from their point of view -- and there is no citation
7 to authority for this. But, from their point of view,
8 communications covered by the executive privilege are the
9 same as communications covered by something like
10 attorney-client privilege, where you could actually have
11 prosecutors being tainted off the prosecution team so that
12 no derivative use could be made of those communications.
13 My understanding of the case law surrounding
14 executive privilege is that is distinctly not the case.
15 There is no executive privilege, for example -- or no case
16 that says that -- one, there is no case that says that the
17 executive branch or another part of the executive branch
18 can't be exposed to these communications. And there is
19 certainly no case to my knowledge that says that if another
20 part of the executive branch were exposed to the
21 communications then, all of a sudden, the prosecutors and
22 agents would be tainted off because of the mere possibility
23 of derivative use.
24 So, in other words, I think they're saying that
25 communications in the possession of the Department of
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1 Justice that potentially could be covered by executive
2 privilege carry with them the same concerns as
3 attorney-client privilege communications; but there is no
4 authority for that proposition, Your Honor, and they have
5 not cited any.
6 THE COURT: So, interestingly, having lived
7 through Special Counsel Robert Mueller's investigation as
8 chief judge -- it was interesting to me to see that Twitter
9 cites Special Counsel Mueller's report on the investigation
10 into Russian interference in the 2020 election and uses that
11 as -- cites an example where it says: The White House was
12 given notice in advance of interviews regarding statements
13 made by the President, quote: To give the White House an
14 opportunity to invoke the executive privilege in advance of
15 the interviews.
16 And it is certainly the practice, often, that a
17 privilege holder is given notice of a motion to compel
18 testimony, as the example from the Mueller report indicates,
19 from another person about potentially privileged
20 communications. But that same advance notice to a privilege
21 holder is not given before the government obtains covertly
22 potentially privileged records because, obviously, obtaining
23 testimony from a person is not covert. And if that
24 testimony is obtained from a person before the grand jury,
25 grand jury secrecy rules, under Federal Rule of Criminal
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1 Procedure 6(e), expressly do not subject a grand jury
2 witness to grand jury secrecy.
3 So having -- Twitter having pointed out what are,
4 to most of us -- not novel, not difficult -- but obvious
5 differences between the Mueller report example of giving
6 advance notice to a privilege holder before obtaining
7 potentially privileged testimony from a third person before
8 the grand jury because that's not going to be -- it's not
9 going to be covert. That grand jury witness can go talk
10 about it to the privilege holder; compared to the obvious
11 difference, as I said, of a covert warrant.
12 Does the government have any other reasons for the
13 difference in procedures between giving advance notice to a
14 privilege holder before obtaining potentially privileged
15 testimony from a person, third party, and not giving such
16 advance notice in connection with covertly obtaining a
17 privilege holder's records pursuant to a Stored
18 Communications Act warrant?
19 MR. BERNSTEIN: Well, it's just that, Your Honor.
20 It's the fact that if we speak to a witness, that's not a
21 covert step. Again, the witness can go speak with the
22 President himself or herself, and that often can be the
23 case. In this case, we're asking for Twitter to simply
24 comply with the unambiguous order that this order issued to
25 produce these records; "these records," being communications
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1 and materials related to the former President, that there is
2 no legal bar to us possessing it in the first place.
3 THE COURT: Well, are there other reasons for not
4 giving advance notice in connection with a covert warrant to
5 a potential privilege holder that might be incorporated into
6 a nondisclosure order?
7 MR. BERNSTEIN: In this case, the specific reasons
8 for why we sought the nondisclosure order -- I think if we
9 get into the granular facts, that will be part of an
10 ex parte submission. But I can say now that we expect to
11 prevail on the litigation related to the NDO. And the basis
12 for that -- there actually are concrete cognizable reasons
13 to think that: If the former President had notice of these
14 covert investigative steps, there would be actual harm and
15 concern for the investigation, for the witnesses going
16 forward.
17 THE COURT: And that's based on your own
18 investigation here, and not Volume II -- Volume II of the
19 Mueller report which lays out, in hundreds of pages, the
20 number of obstructive actions taken by the same person who
21 was the user of the account at issue?
22 MR. BERNSTEIN: So, Your Honor, yes.
23 In our ex parte submission, we intend to lay out a
24 number of validated concrete facts independent of what is in
25 the Mueller report that make out a relatively clear case of
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1 the President being someone who will take obstructive action
2 if he is notified of this warrant.
3 THE COURT: All right. So Twitter says that
4 producing the warrant returns prior to allowing the company
5 to alert the former President of the warrant would
6 irreparably injure its First Amendment rights, eliminate any
7 potential remedy for the former President. And the
8 government's response is to turn to Google -- the Google
9 case from the Southern District of New York from 2020, as
10 standing for the uncontroversial principle that the warrant
11 and NDO do not travel together.
12 So is the government construing Twitter's First
13 Amendment concerns as tied only to the NDO and not to both
14 the NDO and the warrant?
15 MR. BERNSTEIN: Yes, Your Honor. And they are
16 construing it the same way, their First Amendment
17 challenge -- the only remedy they are seeking is to an
18 entirely separate order. They are seeking, under the First
19 Amendment, to modify or vacate the nondisclosure order.
20 Nothing they do under the First Amendment will
21 alter the validity of the warrant itself or negate any
22 element of contempt.
23 If Your Honor can give me 30 seconds to make
24 another point here. The citation of the First Amendment is,
25 to a certain degree, disingenuous for this reason: If the
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1 government -- and Twitter has represented this to the
2 government. But if the government were to withdraw the NDO
3 today -- which we are not doing, but if we did -- Twitter
4 would have all the speech it wanted. It would have no more
5 restrictions on speech; the First Amendment issue would be
6 gone, I think everybody agrees with that.
7 Even then they have represented that they will not
8 produce the records to the government. They will continue
9 to violate the order because they have decided that they
10 will give this special account holder the opportunity to
11 litigate pre-indictment motions related to executive
12 privilege.
13 So, again, Your Honor, has ordered Twitter to
14 produce these records within ten days; they have said, "No,
15 thank you." We are going to -- whether there is a First
16 Amendment issue or not, we are going to set a different
17 timetable, a special protocol; and we will give this account
18 holder the opportunity to litigate these motions about
19 executive privilege which, again, are frivolous considering
20 that there is no indication in the record that there will be
21 executive privilege communications on this account in the
22 first place. And even if there were, we are the executive,
23 Your Honor.
24 THE COURT: Okay. So Twitter, in its opposition,
25 had, like, I don't know, I counted like 80 pages of an
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1 exhibit of all these press reports about the special counsel
2 investigation; I didn't look at it in detail.
3 But, in sum, Twitter's argument is: Hey, the
4 government's interest in maintaining the NDO isn't
5 compelling because look at all this press. Lots of people
6 know about this investigation going on. The Attorney
7 General has an order on the DOJ website saying: I have
8 appointed the special counsel to look at the following
9 issues.
10 Twitter goes on to say that the press has been
11 doing its job, thankfully. And so, as a consequence, we all
12 know that, you know, the government, in aggressively
13 pursuing this investigation, has been looking at the
14 communications of a number of people.
15 So it sums up by saying: It strains credulity to
16 believe that the incremental disclosures of this warrant
17 could somehow alter the current balance of public knowledge
18 in any meaningful way so as to cause harm to the
19 investigation.
20 So just like Twitter doesn't know much about the
21 warrant here at all, and has only seen a small sliver of the
22 entire warrant package, do you think that it strains
23 credulity to believe the incremental disclosure of this
24 order would somehow alter the current balance of public
25 knowledge in any meaningful way?
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1 MR. BERNSTEIN: Absolutely not, Your Honor.
2 There is an incredible difference between the
3 public knowing about the existence of the investigation and
4 the account holder in this case knowing about a concrete,
5 investigative step that the government has taken.
6 And, again, I have to be careful about what I say
7 in this setting because I don't want to disclose information
8 that's covered by 6(e) or that otherwise would compromise
9 the investigation. With that said, Your Honor, I think when
10 Your Honor gets our ex parte filing with respect to the NDO,
11 I think Your Honor will wholeheartedly reject the assertion
12 that it strains credulity to think that there could be
13 serious adverse consequences from the President finding out
14 about this search warrant.
15 THE COURT: And Twitter goes on -- focusing on the
16 NDO -- that the government's proffered explanations for
17 needing the NDO appear conclusory and that there is no
18 reason to believe that notification of the warrant would
19 suddenly cause former President Trump or potential
20 confederates to destroy evidence, intimidate witnesses, or
21 flee prosecution, particularly since the former President
22 has announced that he is running in 2024.
23 And I did look at the NDO just to see is that
24 language just as specific as that, and it is. It doesn't
25 have to be. Under 2705(b), it's not just by the account
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1 holder, it's by any other person who might flee, might
2 obstruct. And this NDO was written fairly narrowly, to say
3 the least.
4 I think one thing that I hope the government takes
5 away from this interlude with Twitter is that the
6 boilerplate NDOs -- although in the applications are fairly
7 more detailed, and clearly and broadly -- the orders
8 themselves, you probably need to look at the more
9 boilerplate orders in the NDOs to make it as broad as the
10 application is requesting.
11 So do you want to respond to that? -- to Twitter's
12 comment that there is no reason to believe notification
13 would suddenly cause Trump or potential confederates to
14 destroy evidence, intimidate witnesses, or to flee
15 prosecution, or are you waiting on that for an ex parte
16 submission?
17 MR. BERNSTEIN: We are waiting. But I can give
18 Your Honor two responses in the meantime.
19 First, they don't know anything. I mean, they
20 know some stuff. They know what they have read in the
21 newspapers. But they're making these confident factual
22 assertions without knowing the actual facts of the
23 investigation.
24 Number two, they have cited a number of news
25 articles. They seem to have a robust understanding of what
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1 is in the public record. They seem to be ignoring the fact
2 that there is an entirely separate public investigation into
3 the former President for doing just that, for taking
4 obstructive efforts with respect to NARA's request to
5 retrieve classified documents, and then the government --
6 the grand jury's request to subpoena classified documents
7 from the former President, and the steps that he took to
8 obstruct those efforts. So there will be considerably more
9 detail about the basis for the NDO when we brief this issue.
10 For now, though, the assertion that they're
11 making, one, is not based on any factual foundation that
12 they could possibly be aware of; and then, second, to the
13 extent that they are able to ascertain details from the
14 public record, they seem to be ignoring those details.
15 THE COURT: Okay. So let me just let me turn to
16 compliance since it's been ten days of delay. I think if
17 Twitter can comply with production by 5 p.m. today -- is
18 that what the government is looking for, or are you looking
19 for some other time period?
20 MR. BERNSTEIN: We are looking for compliance as
21 soon as possible. And we understand that they're prepared
22 to comply, they are just choosing not to.
23 THE COURT: And the government -- consistent with
24 past situations like this, the government has been coy about
25 setting out precisely what it's asking for, in terms of an
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1 incentive to comply within the time frame of 5 p.m. today of
2 the penalty, given the fact that I am looking at a company
3 that was bought for $44 billion; and the CEO, sole owner of
4 Twitter, is worth -- according to some news reports, I
5 guess -- over 180 billion.
6 What is the government asking for in terms of a
7 fine, for failure to comply by 5 p.m. today?
8 MR. BERNSTEIN: So the marching orders I have,
9 Your Honor, are to take into account -- once discussed
10 today, we will go back to the special counsel's office,
11 discuss with the special counsel what actual number and
12 schedule we think is appropriate; and then we can file that
13 by 5 p.m. today.
14 THE COURT: That's not on my time frame. You need
15 to come prepared for that. $25,000, $50,000 a day, for
16 failure to comply? What's the number?
17 MR. BERNSTEIN: Could I have 30 seconds to speak
18 with co-counsel?
19 THE COURT: You can have like ten.
20 (Whereupon, government counsel confer.)
21 MR. BERNSTEIN: Your Honor, we're asking for
22 $50,000, and then to double each day thereafter.
23 THE COURT: All right. Okay. Thank you.
24 Anything further?
25 MR. BERNSTEIN: No, Your Honor. Thank you.
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1 THE COURT: All right.
2 MR. VARGHESE: Good afternoon, Your Honor.
3 THE COURT: Mr. Varghese.
4 Twitter says in its opposition that -- in its
5 defense, that its ability to communicate with its customers
6 about law enforcement's efforts to access their
7 communications and data is essential to its business model
8 in fostering trust with its user base.
9 But, clearly, Twitter does not run to court, as it
10 is here today, in response to court orders for information
11 about Twitter users. So even though a lot of Twitter users
12 probably have potential privileges -- marital, priest,
13 clergy, executive, attorney-client -- so what is it -- is it
14 just lucky me, you know, that you are here?
15 What is it about this case? The government
16 suggests it's because you are giving special attention to
17 this particular user.
18 MR. VARGHESE: No. No, Your Honor.
19 THE COURT: Why are you here?
20 MR. VARGHESE: Thank you, Your Honor.
21 So Twitter receives thousands of legal requests
22 every year from law enforcement.
23 THE COURT: I hope you have your website working
24 better than it was working here.
25 MR. VARGHESE: I don't know. I think that might
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1 have been on them, Your Honor. I don't know what the
2 details were about the legal process, but it worked --
3 THE COURT: I thought legal counsel said: Oh,
4 yeah, our website for handling this was down for a couple of
5 days, or something.
6 MR. VARGHESE: I don't know the answer for that,
7 Your Honor. I don't know.
8 THE COURT: Well, that should be a focus for
9 Twitter, rather than trying to delay --
10 MR. VARGHESE: Your Honor, if I may.
11 THE COURT: -- warrant returns in a case of such
12 national importance as this.
13 MR. VARGHESE: Your Honor, if I may.
14 Twitter reviews thousands of pieces in the legal
15 process, including the nondisclosure orders that goes with
16 it; that's what this issue is about. It's about Twitter's
17 First Amendment rights.
18 When this legal process came in with this
19 nondisclosure order, as this Court noted, it is boilerplate.
20 THE COURT: Come on. Let's just cut through this.
21 Twitter gets NDOs a lot --
23 THE COURT: -- so it has to pick and choose: This
24 is where we're going to stand up for our First Amendment
25 rights and challenge a gag order on these particular cases,
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1 and on these particular cases we're not.
2 So what is the criteria that Twitter uses?
3 MR. VARGHESE: It's whether or not they're
4 facially valid, Your Honor.
5 THE COURT: Is it because the CEO wants to cozy up
6 with the former President, and that's why you are here?
7 MR. VARGHESE: No, Your Honor. It's whether or
8 not they are facially valid.
9 In this case, one of the arguments was flee from
10 prosecution. As this Court has already noted, the former
11 President of the United States, who has announced that he is
12 rerunning for President, is not at flight from prosecution.
13 Presumably, with his security detail, he is not fleeing.
14 Second, Your Honor --
15 THE COURT: And you didn't accept the other
16 reasons?
17 MR. VARGHESE: The other reason is destruction of
18 evidence, Your Honor. What we know about destruction of
19 evidence in notifying Confederates is that this is the most
20 publicly announced criminal investigation. The Attorney
21 General of the United States had a press conference to
22 announce Mr. Smith's appointment, as well as his mandate
23 with respect to investigating the former President. It just
24 doesn't ring true, Your Honor.
25 THE COURT: So the -- Twitter's in-house counsel
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1 states that: On occasion, we, Twitter, have challenged
2 nondisclosure order orders whether in follow-up
3 conversations with prosecutors or government officials or in
4 court filings.
5 On how many occasions has Twitter challenged NDOs
6 in court?
7 MR. VARGHESE: I don't know the exact number, Your
8 Honor.
9 THE COURT: Does somebody at your table know?
10 MR. VARGHESE: I don't believe we have the exact
11 number, Your Honor.
12 THE COURT: Okay. By 5 p.m. today, can you
13 provide that list to me?
14 I want to know how often Twitter has challenged
15 NDOs in court. I want case cites and docket numbers. If
16 those orders are under seal, I would like you to tell me
17 that; and I want to know the results.
18 MR. VARGHESE: Your Honor, if I may, I personally
19 have called on behalf of Twitter two prosecutors and raised
20 concerns about this.
21 THE COURT: I am not asking about whether you have
22 had informal conversations. I am asking about court
23 filings.
25 THE COURT: Okay. So I just want to know
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1 because -- based on those court filings -- perhaps I will be
2 able to see what criteria Twitter is using to assert the
3 rights of its users in court.
4 MR. VARGHESE: If I may, Your Honor.
5 So we have made informal calls where we had
6 concerns about NDOs. And, oftentimes, prosecutors have
7 agreed either to withdraw the NDO or to modify the NDO.
8 Your Honor, that is the process that we go through.
9 THE COURT: What modifications did you want here?
10 As I understand it, your modification was to take
11 out of the NDO "potential risk of flight by the President,"
12 although he does have properties overseas that would be
13 probative.
14 What your demand of the government here was, was
15 to provide advance notice of an otherwise covert warrant.
16 MR. VARGHESE: Your Honor, if I may, either to the
17 user or to the user's representative, a representative of
18 the user who could assert the user's interest in this issue.
19 And Your Honor --
20 THE COURT: What user representative, when you are
21 dealing with an individual and not a company, doesn't report
22 directly to the user?
23 MR. VARGHESE: Well, the former --
24 THE COURT: So what are you talking about
25 Mr. Varghese?
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1 MR. VARGHESE: The former President has designated
2 certain individuals to act in his capacity with respect to
3 his presidential records.
4 THE COURT: And they are lawyers who report
5 directly to him, if they're still -- to the extent that he
6 designated any, if they're still working for him.
7 MR. VARGHESE: And so, for example, Your Honor --
8 THE COURT: There have been a lot of changes.
9 MR. VARGHESE: For example, Your Honor, this issue
10 came up with Google and a warrant with respect to The
11 New York Times. In that case, there was an accommodation
12 made that allowed -- that allowed Google to notify The
13 New York Times general counsel but not the reporter whose
14 records were being sought.
15 THE COURT: Because that was a company context
16 here. We're dealing with an individual.
17 So how is that workable here?
18 MR. VARGHESE: Well, Your Honor, we would submit
19 that the former President has identified certain individuals
20 in his capacity for the office of the presidency.
21 THE COURT: Do you know if all of those people who
22 were designated back on January -- January 2021, are still
23 working as his representatives vis-à-vis NARA?
24 MR. VARGHESE: Your Honor, I believe some of them
25 are. There was an updated list that was provided to NARA
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1 for people who could represent him, Your Honor. We can
2 check on their exact employment status, but --
3 THE COURT: And you think that you could
4 communicate with them, unlike company counsel, who could
5 preserve secrecy that these are individuals designated by
6 the former President who could preserve secrecy from the
7 former president?
8 MR. VARGHESE: Well, if this Court ordered that --
9 THE COURT: And you have confidence, and you think
10 the government should have confidence in that?
11 MR. VARGHESE: Well, if this Court ordered that
12 representative -- like what happened in the Google-New York
13 Times case, if this Court ordered that representative not to
14 disclose the existence of the warrant, but simply to assert
15 whether or not any executive privilege would be at issue, I
16 think it is a workable solution, yes, Your Honor.
17 THE COURT: Okay. Well, I would like the
18 government to be prepared to respond to that potential
19 alternative.
20 MR. VARGHESE: And, Your Honor, I have -- I
21 apologize.
22 THE COURT: So let's go to what Twitter's in-house
23 counsel said, in the declaration at paragraph 10,
24 that NARA has a copy of the target account and much of the
25 information called for in the warrant. So, of course, "much
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1 of" is not all of the information called for in the warrant.
3 THE COURT: So what is it that Twitter sent to
4 NARA that -- well, has Twitter sent information to NARA
5 already?
6 MR. VARGHESE: Yes, Your Honor. But --
7 THE COURT: Okay. And what information is
8 covered -- required to be produced in the warrant that has
9 not been produced to NARA?
11 The big difference between what is in Attachment B
12 and what NARA has --
13 THE COURT: Attachment B, Part 1 --
14 MR. VARGHESE: Part 1.
15 THE COURT: -- of multiple parts that you have no
16 idea about.
18 -- and what is being held by NARA currently and
19 safely -- the big difference is business records.
20 So Attachment B asked for the communications with
21 Twitter about any service interruptions. It asked for
22 communications -- logs of service, length of service --
23 these kinds of business records that Twitter has; that's not
24 what is being held at NARA.
25 What is being held at NARA is the user's profile,
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1 his tweets, including deleted tweets, images, videos, gifts
2 attached to those tweets, his list of followers, direct
3 messages, moments, mentions, replies; there is extensive
4 information. And I will point out, Your Honor, what NARA is
5 holding is from January 17th through January 2021 [sic], a
6 far longer time period than what the special counsel is
7 offering.
8 In fact, the volume of information that is being
9 held at NARA is much more significant than what is being
10 requested in Attachment B. But the distinction, Your Honor,
11 to be clear, are those Twitter business records, such as IP
12 records, length of service records, credit card
13 information -- those kinds of business records. That's not
14 what NARA was interested in, and that was not what was
15 provided to NARA as part of the records collection, Your
16 Honor.
17 If I may also take a step back and answer a
18 question --
19 THE COURT: So you have already produced all of
20 the user names, the date and time each user name was active,
21 all associated accounts including those linked by machine,
22 cookie, IP address, email address, or any of their account
23 or device, records or information about connections with
24 third-party websites and mobile app s whether active,
25 expired, or removed?
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2 Actually, Twitter doesn't maintain that
3 information.
4 THE COURT: And in terms of information about
5 devices used to log in or access the account?
6 MR. VARGHESE: That would not be at NARA, no, Your
7 Honor.
8 THE COURT: Okay. And internet protocol addresses
9 used to create, log in, or use the account, including dates,
10 times, and port numbers?
11 MR. VARGHESE: No, Your Honor. That would have
12 been -- those are Twitter business records that would not
13 have been produced to --
14 THE COURT: And privacy account settings,
15 including change history?
17 THE COURT: Communications between Twitter and any
18 person regarding the account, including context with support
19 services and records of actions taken?
20 MR. VARGHESE: No. That would be situations where
21 you would report: My IP is not working, my access is not --
22 THE COURT: Okay. So in Attachment B, Part 1,
23 nothing in paragraph 1 has been turned over by Twitter to
24 NARA?
25 MR. VARGHESE: That's not what NARA requested, no,
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1 Your Honor.
2 THE COURT: Got it.
3 And then paragraph 2 is: All content, records,
4 and other information relating to communications, including
5 the content of all tweets created, drafted, favorited,
6 liked, or re-tweeted.
7 MR. VARGHESE: Yes, Your Honor. I believe most of
8 that information would have been produced to NARA.
9 THE COURT: Most, or all?
10 MR. VARGHESE: Well, Your Honor --
11 THE COURT: If you don't know, you can just let me
12 know, Mr. Varghese.
13 MR. VARGHESE: I don't know precisely if they're a
14 complete overlap. But that is the type of information that
15 was produced to NARA, so I just don't know if it's 100
16 percent accurate -- complete, Your Honor.
17 THE COURT: So you don't know, okay.
18 We have got all of paragraph 1. We have got
19 paragraph 2A, not necessarily produced to NARA.
20 And then, B: Content of all direct messages sent
21 from, received by, stored in draft form in, or otherwise
22 associated with the subject account including all
23 attachments, multimedia, header information, metadata, and
24 logs.
25 MR. VARGHESE: Again, Your Honor, direct messages
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1 were provided to NARA.
2 THE COURT: And that means drafts also?
3 MR. VARGHESE: I don't know, Your Honor.
4 THE COURT: Okay. Well, somebody behind you
5 knows.
6 (Whereupon, Twitter counsel confer.)
7 MR. VARGHESE: Everything that Twitter had in
8 January of 2021 was provided to NARA with respect to the
9 draft message.
10 THE COURT: Yes. But that's not my question.
11 My question was: Was everything --
12 MR. VARGHESE: I think to the extent --
13 THE COURT: -- covered in paragraph 2B produced to
14 NARA?
15 MR. VARGHESE: To the extent that Twitter had it,
16 it was produced to NARA.
17 THE COURT: All right. In your briefing -- I am
18 not going to waste more time going up and down through this
19 whole thing. But, clearly, I think the point has already
20 been established that everything Twitter produced to NARA is
21 not covered -- it's not a complete overlap with what was
22 demanded in the warrant.
23 Okay. So even if it's correct, although I am not
24 persuaded that the Presidential Records Act would require
25 notice to the former President if the government did seek
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1 from NARA all of this Twitter account information, why
2 should Twitter be able to dictate to the government where it
3 gets information for its investigation?
4 MR. VARGHESE: To be clear, Your Honor, Twitter is
5 not trying to dictate to the government where it should get
6 that information.
7 Twitter engaged in good-faith negotiations with
8 the special counsel's office about the nondisclosure order
9 in Twitter's own First Amendment rights. And as we were
10 having discussions with Mr. Bernstein, we offered an
11 alternative; that was the context in which NARA was raised.
12 It was not saying go somewhere else.
13 THE COURT: Okay. So let's go right to that.
14 Twitter concedes it has no standing whatsoever to
15 assert any privilege on behalf of the user of this account,
16 correct?
17 MR. VARGHESE: That's correct, Your Honor.
18 THE COURT: All right. And so -- but you are
19 saying that you do have standing to assert a First Amendment
20 right here under the --
21 MR. VARGHESE: That's correct.
22 THE COURT: -- nondisclosure order?
23 MR. VARGHESE: That's correct, Your Honor. And
24 it's an important First Amendment right. It's the right to
25 communicate with our users that's being restrained by the
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1 special counsel's office, and that was the basis for
2 reaching out to them, Your Honor.
3 THE COURT: But you want to exercise that First
4 Amendment right here, the reason -- what is animating your
5 assertion of the First Amendment right here is because you
6 believe that there are these unique constitutional issues
7 associated with this user and this user account because of
8 what Twitter perceives to be an executive privilege,
9 difficult and challenging issue.
10 So what is it about the executive privilege issues
11 that Twitter sees here that Twitter believes differentiates
12 it from other privileges that any Twitter user might have?
13 I mean, the government has made what I think is a
14 very accurate statement, that this is -- Twitter's
15 intervention here is quite momentous, I think is the word
16 the government used.
17 So why isn't it momentous if Twitter can pop up --
18 take up all of my time, and every district court judge
19 across the country's time -- to intervene, to stop
20 compliance -- not just with warrants in investigations of
21 this significance, but even in a request for subscriber
22 information or any other use of Stored Communications Act
23 authorities to say: Whoops, there might be a privilege
24 there, we want to alert the user of that account that we're
25 about to turn over information about the account user to the
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1 government so that they can have an opportunity to step in?
2 You are not doing that for everybody.
4 THE COURT: And you are not doing it for every
5 privilege.
7 THE COURT: So what is it about executive
8 privilege or this user or this user account that makes
9 Twitter stand before me today?
10 MR. VARGHESE: Your Honor, there's two things that
11 make this case unusual, which is what brought us here.
12 First, we had a facially invalid NDO in our view based on
13 the way that we read it and what we know about this
14 investigation.
15 THE COURT: Which is not much, to be honest. You
16 don't even know the half about the very warrant you are
17 coming in here to delay execution of.
18 MR. VARGHESE: Understood, Your Honor. However,
19 we also know --
20 THE COURT: I hope you do understand.
21 MR. VARGHESE: Of course, Your Honor. But what we
22 also know is saying: Risk of flight for a former President
23 of the United States doesn't make a lot of sense.
24 Second, Your Honor --
25 THE COURT: I would agree with that.
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1 MR. VARGHESE: Thank you, Your Honor. That raises
2 concerns for us.
3 Then, when we looked at the underlying substantive
4 issue, Your Honor, this is the first time in our knowledge
5 that private presidential communications held by a third
6 party were being demanded by the government through a
7 warrant without any notice to that former occupant. We were
8 not aware of another time ever where that has happened.
9 THE COURT: Well, you did not read the Mueller
10 report very carefully.
12 THE COURT: Because the Mueller report talks about
13 the hundreds of Stored Communications Act -- let me quote.
14 Let's see.
15 The Mueller report states that: As part of its
16 investigation, they issued more than 2800 subpoenas under
17 the auspices of the grand jury in the District of Columbia.
18 They executed nearly 500 search and seizure warrants,
19 obtained more than 230 orders for communications records
20 under 18 U.S.C. Section 2703(d); and then it goes on and on
21 and on for all of the other things they did.
22 And some of those communications included the
23 former President's private and public messages to General
24 Flynn, encouraging him to "Stay strong," and conveying that
25 the President still cared about him, before he began to
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1 cooperate with the government.
2 So what makes Twitter think that, before the
3 government obtained and reviewed those Trump-Flynn
4 communications, the government provided prior notice to the
5 former President so that he can assert executive privilege?
6 MR. VARGHESE: My understanding, Your Honor, is
7 that the Mueller investigators were in contact with the
8 White House counsel's office about executive privilege
9 concerns.
10 THE COURT: You quoted the one part that said
11 that, and that was for testimony, testimony, where it was
12 not covert.
14 THE COURT: You need to read the Mueller report a
15 little bit more carefully.
16 MR. VARGHESE: Yes, Your Honor. Our --
17 THE COURT: You think that for 230 orders, 2800
18 subpoenas, and 500 search and seizure warrants the Mueller
19 team gave advance notice to the former President of what
20 they were about?
21 MR. VARGHESE: I don't know that, Your Honor.
22 THE COURT: You do not know that.
23 MR. VARGHESE: But what I believe was that there
24 was consultation with the White House about the scope of
25 executive privilege, that's my understanding.
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1 THE COURT: When it came to testimony for the
2 obvious reason, that that was not covert.
5 MR. VARGHESE: So if I may finish your question,
6 though, Your Honor.
7 THE COURT: Do you understand --
9 THE COURT: -- that it is only with respect to the
10 speech and debate clause privilege that the D.C. Circuit,
11 alone, of all of the circuits, has said that there is a
12 nondisclosure component to that privilege that requires the
13 privilege holder to have the opportunity to review the
14 materials before it is reviewed by prosecutors?
16 THE COURT: And no such nondisclosure attribute
17 has ever, as government counsel said, been attached to the
18 exercise of executive privilege.
19 And do you know why it is that the D.C. Circuit in
20 Rayburn said that there was a nondisclosure aspect to the
21 speech or debate clause privilege?
23 THE COURT: Well, let me advise you.
24 It was because of separation of powers concerns;
25 Congress being investigated by the executive branch. So
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1 that before prosecutors sitting in the executive branch
2 could see potentially privileged under speech or debate
3 clause material, they had to give the privilege holder the
4 opportunity to review it all because of separation of powers
5 concerns. And here I have the executive branch looking at
6 executive branch materials; it is not the same thing.
7 MR. VARGHESE: Your Honor --
8 THE COURT: So I don't know how it is that you
9 think that the same nondisclosure, advance notice to the
10 privilege holder requirement applies here. It is not
11 looking at the full scope of privilege law as it has
12 developed in this circuit.
13 And I find it very ironic you are relying on Nixon v
14 Administrator of General Services, this 1977 Supreme Court
15 case. But in that case, didn't the Supreme Court -- to the
16 point that I was talking about in terms of speech or debate
17 clause and its differences with executive privilege -- hold
18 that the GSA administrator could take custody of and review
19 recordings and documents created by President Nixon?
20 MR. VARGHESE: It did, Your Honor. But it did not
21 accept that principle that: Oh, this is all within the
22 executive branch; that was not the basis for that decision.
23 It was a multifactored fact-intensive inquiry. What they
24 said was that we feel comfortable that the archivist can
25 review this material.
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1 THE COURT: Yes. Because GSA is himself an
2 official of the executive branch, and that GSA's career
3 archivists are, likewise, executive branch employees.
4 MR. VARGHESE: But that was not the end of the
5 inquiry, Your Honor. That is a 45-year-old opinion that the
6 special counsel's office is holding on to to make a
7 bright-line rule that says that they are allowed to look at
8 everything in the executive branch, and that is simply --
9 THE COURT: What Twitter's position here is that
10 the same separation of powers concerns that animated the
11 nondisclosure aspect to the speech or debate clause, meaning
12 the privilege holder needed to obtain advance notice, should
13 apply here --
15 THE COURT: -- to assertion of executive
16 privilege? And all Twitter is doing here is it's holding up
17 what it views should be the state of the law for executive
18 privilege?
20 Twitter does not take a position on what the scope
21 and the contours of executive privilege are. But note that
22 that is not a well-defined space. And all we are asking
23 for --
24 THE COURT: It's much better defined than you
25 think.
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1 MR. VARGHESE: Your Honor, if I may, one of the
2 things that we don't know about is derivative use. What if
3 the special counsel's office uses that --
4 THE COURT: What are you talking about with
5 "derivative use"?
6 MR. VARGHESE: I can explain, Your Honor.
7 THE COURT: I read that, and I really wanted to
8 know what you are talking about.
9 MR. VARGHESE: I can explain, Your Honor.
10 THE COURT: Sure.
11 MR. VARGHESE: If, for example -- assuming for a
12 second there is executive privilege materials in the
13 account --
14 THE COURT: Which, of course, you have zero idea
15 about.
16 MR. VARGHESE: I can come back to that question,
17 Your Honor.
18 THE COURT: No. Deal with it right now.
19 You have zero idea about executive privilege
20 communications in this Twitter account.
21 MR. VARGHESE: Twitter does not review the
22 contents of its users' accounts.
23 THE COURT: You have no idea?
24 MR. VARGHESE: But I can say there are
25 confidential communications associated with the account.
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1 THE COURT: And how do you know that?
2 MR. VARGHESE: So, Your Honor, we went back --
3 because this was an important issue for us to compare,
4 whether or not there were potentially confidential
5 communications in the account, and we were able to confirm
6 that.
7 THE COURT: How?
8 MR. VARGHESE: So, Your Honor, there was a way
9 that we compared the size of what a storage would be for DMs
10 empty versus the size of storage if there were DMs in the
11 account. And we were able to determine that there was some
12 volume in that for this account. So there are confidential
13 communications. We don't know the context of it, we don't
14 know --
15 THE COURT: They are direct messages. What makes
16 you think -- do you think that everything that a President
17 says, which is generically a presidential communication, is
18 subject to the presidential communications privilege?
20 THE COURT: Is that the basis of this? You have a
21 total misunderstanding of what the presidential
22 communications privilege is?
23 MR. VARGHESE: No, Your Honor. No, Your Honor,
24 that's not my understanding.
25 THE COURT: So what -- I don't understand your
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1 argument, Mr. Varghese.
2 MR. VARGHESE: My argument simply, Your Honor, is
3 the user may have an interest in these communications, and
4 asserting that privilege. It's not Twitter's interest.
5 THE COURT: Having an interest is a very different
6 thing from saying something is privileged --
7 MR. VARGHESE: It might be.
8 THE COURT: -- under the executive privilege or
9 the presidential communications privilege. Would you
10 concede that?
11 MR. VARGHESE: Yes, Your Honor. But it's not my
12 privilege to assert. It's not Twitter's privilege to
13 assert. All we're simply trying to do is exercise our First
14 Amendment rights to notify the user so the user may assert
15 that privilege if he chooses.
16 But getting back to the derivative point, Your
17 Honor, if I may.
18 THE COURT: Yes.
19 MR. VARGHESE: The point of the derivative
20 argument is if -- the special counsel's office is using
21 these materials before the grand jury, which is an organ of
22 this court, or using them in warrant affidavits --
23 THE COURT: Well, actually, grand jury is a,
24 actually, a totally independent body from any branch of
25 government.
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1 MR. VARGHESE: But certainly not the executive
2 branch, Your Honor. Also, we would say --
3 THE COURT: The grand jury is independent of --
4 MR. VARGHESE: That's right, Your Honor.
5 THE COURT: -- of every branch of government,
6 including the executive branch.
7 MR. VARGHESE: Yes, Your Honor. And that's
8 precisely why the executive privilege wouldn't be protected
9 in that case, or if the material is put into an affidavit
10 and shown before a judge to get another warrant, that would
11 also vitiate the privilege it would seem. Also, if it was
12 being used in interviews with witnesses --
13 THE COURT: So what is it about -- so this is the
14 confusion here, Mr. Varghese.
16 THE COURT: That you want to treat the executive
17 privilege like the speech or debate clause without any of
18 the same foundational predicates for that because material
19 obtained covertly by the government that is potentially
20 privileged is, typically, subject to a filter review
21 protocol to identify that and get judicial rulings on that;
22 and that's how it's normally dealt with, use of a filter
23 team.
24 But what you are saying is executive privilege
25 can't be dealt with that way; it has to, instead, use a
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1 protocol similar to that required by the D.C. Circuit in my
2 reading. But the D.C. Circuit is going to consider that, I
3 would hope, and say that advance notice has to be given to
4 the privilege holder to debate it.
5 MR. VARGHESE: No, Your Honor, that is not my
6 position.
7 THE COURT: That is exactly what you are saying.
8 Why are you fighting that?
9 MR. VARGHESE: Because, Your Honor, I am not
10 saying what the right way is for executive privilege to be
11 treated.
12 THE COURT: Aren't you saying that advance notice
13 has to be given to the user of the account here? I thought
14 that was the whole reason we're here.
15 MR. VARGHESE: Your Honor, if I may, what I am
16 trying to say is that it is ill defined. The contours of
17 how executive privilege works is ill defined. The only case
18 the special counsel's office is looking to is a 45-year-old
19 Supreme Court case.
20 THE COURT: And, as a consequence, isn't it
21 Twitter's position, yes or no, that advance notice to a
22 privilege holder of the executive privilege must be given
23 before Twitter can turn over the warrant returns?
24 MR. VARGHESE: Your Honor, our position --
25 THE COURT: Yes or no? Is that your position or
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1 not?
2 MR. VARGHESE: We would like to notify the user as
3 per our First Amendment rights.
4 THE COURT: So, yes, that's your position?
5 MR. VARGHESE: We would like to notify the user
6 per our First Amendment rights.
7 THE COURT: I am interpreting that as a "yes." I
8 don't know why you can't say "yes," it's a puzzle to me.
10 THE COURT: It's very frustrating.
11 MR. VARGHESE: I apologize, Your Honor.
12 THE COURT: I try to be direct, and I don't
13 understand why you are not being direct. But -- yes.
14 And I am telling you -- why, for the executive
15 privilege, does Twitter believe that such advance notice is
16 required when, for every other privilege except speech or
17 debate clause, it is not?
18 MR. VARGHESE: It's because it is ill defined.
19 There is no controlling law in this area, and we believe the
20 user has the right to litigate this issue; that's it, Your
21 Honor.
22 We have a First Amendment right to notify --
23 THE COURT: Even though the entire Mueller report,
24 with hundreds of search warrants, thousands of subpoenas --
25 the only time the two-volume Mueller report ever talks about
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1 ever alerting the White House counsel is where it wasn't
2 covert it was overt, because they were seeking potentially
3 privileged information from a grand jury witness. But,
4 nonetheless, you think it's never been done before?
5 MR. VARGHESE: There is no published opinion, Your
6 Honor, that lays out the contours of executive privilege
7 beyond this 45-year-old opinion, which we do not necessarily
8 think is on point.
9 THE COURT: Okay. It couldn't be that Twitter is
10 trying to make up for the fact that it kicked Donald Trump
11 off Twitter for some period of time that it now is standing
12 up to protect First Amendment rights here, is it?
14 THE COURT: Because it's a little bit of an ironic
15 position, don't you think?
16 MR. VARGHESE: No, Your Honor. This is based on
17 the facially invalid NDO.
18 THE COURT: Is this to make Donald Trump feel like
19 he is a particularly welcomed new renewed user of Twitter
20 here?
21 MR. VARGHESE: Twitter has no interest other than
22 litigating its constitutional rights, Your Honor.
23 THE COURT: And how does requiring compliance with
24 the search warrant here actually implicate Twitter's First
25 Amendment rights which are only at issue with the gag order?
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1 MR. VARGHESE: Your Honor, the issue is about
2 whether or not that speech is meaningful.
3 We have a right to speak. There is a
4 difference -- and timing of that speech is critical, and so
5 we would like to provide meaningful notice to the user prior
6 to the review by the government.
7 We still have a First Amendment right, to be
8 clear, to speak to the user afterwards; but we think that
9 that message is stronger and more meaningful if we have an
10 opportunity to convey that message beforehand.
11 THE COURT: So I didn't see it, but this has been
12 on a fairly quick turnaround given the ten-day delay already
13 in compliance with the warrant. But has Twitter found any
14 court decision in which a third-party company, like Twitter,
15 has successfully stayed compliance with a search warrant
16 pending a First Amendment challenge to a nondisclosure
17 order?
18 MR. VARGHESE: No, Your Honor, not an NDO.
19 THE COURT: And would Twitter acknowledge that
20 there is an ongoing harm to the government and the public by
21 continued failure to comply with the search warrant? And if
22 Twitter had its way, that would -- there would be no
23 execution of this search warrant until after completion of
24 briefing and resolution of its challenge to the NDO. Would
25 you acknowledge that that delay would take us, wow, for a
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1 month?
3 We proposed a briefing schedule that was five
4 days. We were having a briefing schedule that would be done
5 by the end of this week -- by the end of next -- next week,
6 I believe. And, therefore, Your Honor, we tried to
7 accommodate the government's concerns. It has never been
8 Twitter's position that we are seeking to delay the
9 government's investigation.
10 We are trying to vindicate our First Amendment
11 right; that is all. So we tried to work around the
12 government's expedited schedule.
13 I should also note, Your Honor -- you mentioned
14 the ten-day delay. Let me just address that for a second.
15 When Mr. Bernstein talked to , counsel,
16 on January 27th, he acknowledged that we were wrestling
17 through these issues. He said: Can we please talk about
18 realistic dates for completion, for execution? He
19 recognized that we were going through these issues. We
20 thought we were having a good-faith discussion. And to say
21 that we have just been sitting on this and trying to upset
22 both the court and the special counsel's office is factually
23 inaccurate, Your Honor.
24 We were trying to work through these issues. We
25 have talked to Mr. Bernstein --
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1 THE COURT: Let me just be clear. I really -- I
2 take offense when lawyers try and attribute to me certain
3 feelings --
4 MR. VARGHESE: I apologize, Your Honor.
5 THE COURT: -- that are totally -- totally off
6 course. So I am not upset.
7 I am trying to puzzle over the arguments to make
8 sense of them when there is zero case law and support of
9 Twitter's arguments.
10 MR. VARGHESE: I apologize, Your Honor. I didn't
11 mean upsetting in the emotion sense. I meant upsetting the
12 Court's deadline or the special counsel's investigation;
13 that is not our goal, Your Honor.
14 Our goal was to engage in good-faith negotiations,
15 which we thought we were doing with Mr. Bernstein.
16 THE COURT: Okay. Can Twitter produce the warrant
17 returns by 5 p.m. today?
18 MR. VARGHESE: I believe we are prepared to do
19 that. Yes, Your Honor.
20 THE COURT: Good. Anything further?
21 MR. VARGHESE: Your Honor, we have a draft -- we
22 have an order that was issued in the Google case, if you
23 want to observe how they did it, allowing The New York
24 Times --
25 THE COURT: I don't need to look and see what the
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1 Southern District of New York judge did.
3 I have nothing further.
4 THE COURT: Any reply?
6 THE COURT: All right. I am going to grant the
7 government's motion for an order to show cause why Twitter
8 should not be held in contempt. I am just going to
9 summarize my reasons here.
10 When I deal with the nondisclosure order challenge
11 I may elaborate on these reasons more fulsomely. But given
12 the fact that Twitter will have until 5:00 p.m. today to
13 produce the warrant returns to the government, I think I am
14 going to keep my remarks fairly brief.
15 As an initial matter, the government has satisfied
16 all three requirements for finding contempt here. There was
17 a clear and unambiguous court order in place; that order
18 required certain conduct by the respondent, the respondent
19 failed to comply with the order. See U.S. v Latney's
20 Funeral Home, 41 F. Supp. 3d 24, jump cite 30, D.D.C. from
21 2014.
22 The search warrant was issued on January 17, 2023.
23 It was an unambiguous court order requiring Twitter to
24 comply with production of the specified records in
25 Attachment B, Part 1, by January 7, 2023. Twitter did not
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1 comply.
2 Twitter doesn't contest those findings in its
3 opposition. Instead, it asserts that it has promptly and
4 expeditiously sought to comply with the warrant and has
5 acted in good faith and with alacrity. But Twitter's good
6 faith does not matter for the purpose of finding it in
7 contempt because a finding of bad faith on the part of the
8 contemnor is not required. See Food Lion, Inc. v United
9 Food and Commercial Workers, a D.C. Circuit case from 1997.
10 Twitter's defense is that producing the requested
11 information prior to allowing it the opportunity to alert
12 the former President would irreparably injure its First
13 Amendment rights and eliminate any potential remedy for the
14 former President. If accepted, Twitter's argument would
15 invite intervention by Twitter -- let alone every other
16 electronic communications provider -- to delay execution of
17 any order, let alone warrants, issued under the Stored
18 Communications Act based on the provider's belief, knowing
19 slivers, slivers of what is required for execution of the
20 warrant -- slivers of knowledge of the scope of an
21 investigation. But they would, nonetheless, step forward to
22 frustrate execution of orders across the country based on
23 their perceived view that their user's potential privilege
24 rights at issue.
25 The government calls the practical consequences of
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1 adopted Twitter's amorphous standards "momentous," and I
2 agree. There is simply no support for Twitter's position.
3 Twitter concedes it doesn't have standing to
4 assert President Trump's claims of executive privilege. And
5 any merit to the former President's potential executive
6 privilege claims need not be addressed here because Twitter
7 lacks standing to assert them or fully brief them. Twitter
8 has no defense for its failure to comply with the search
9 warrant.
10 As the Southern District of New York explained in
11 Google v United States, any challenge to a NDO is separate
12 from a challenge to a search warrant because any further
13 delay on the production of the materials responsive to the
14 warrant increases the risk that evidence will be lost or
15 destroyed, heightens the chance the targets will learn of
16 the investigation, and jeopardizes the government's ability
17 to bring any prosecution in a timely fashion. The public
18 interest is served by prompt compliance with the warrant,
19 443 F. Supp. 3d 447, 455, SDNY, 2020.
20 Twitter's insistence that its First Amendment
21 challenge to the NDO must be resolved prior to its
22 compliance with the search warrant are rejected.
23 Twitter is directed to comply with the warrant by
24 5 p.m. today. Should Twitter fail to comply, I agree with
25 the government that escalating daily fines are appropriate.
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1 If Twitter fails to comply, the fines are civil, designed to
2 ensure Twitter complies with the search warrant. They are
3 not punitive to punish Twitter for its failure thus far to
4 comply.
5 Considering that Twitter was purchased for over
6 $40 billion, and the sole owner is worth over $180 billion,
7 a hefty fine is appropriate here. If Twitter does not
8 comply with the warrant by 5 p.m. today, it will be fined
9 $50,000, and that fine will double every day thereafter.
10 So accordingly -- and part of my consideration for
11 the size of the fine and the need to get this moving is
12 because Twitter is delaying a special counsel investigation
13 into whether any person or entity violated the law in
14 connection with efforts to interfere with the lawful
15 transfer of power following the 2020 presidential election
16 or the certification of the Electoral College vote held on
17 January 6, 2021, and other matters of vital national
18 importance. This delay is going to stop now.
19 Upon consideration of the government's motion for
20 an order to show cause, docketed at ECF No. 5 in the record
21 herein, it's hereby ordered that the government's motion is
22 granted.
23 It is further ordered that Twitter comply with the
24 search and seizure warrant, which itself required compliance
25 by January 27, 2023, by today at 5 p.m.
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1 It is further ordered that Twitter shall be held
2 in contempt if it fails to comply with this order by 5 p.m.
3 today.
4 It is further ordered that Twitter shall be fined
5 $50,000 each day; a fine amount that shall double every day
6 for failure to comply with the order, with that fine payable
7 to the Clerk of this court.
8 Is there anything further today since we already
9 have a schedule for further briefing on the NDO?
11 THE COURT: From Twitter?
12 MR. VARGHESE: No, Your Honor. Thank you.
13 THE COURT: You are all excused.
14 (Whereupon, the proceeding concludes, 3:03 p.m.)
15 * * * * *
16 CERTIFICATE
17 I, ELIZABETH SAINT-LOTH, RPR, FCRR, do hereby

certify that the foregoing constitutes a true and accurate
18 transcript of my stenographic notes, and is a full, true,
and complete transcript of the proceedings to the best of my
19 ability.
20 This certificate shall be considered null and void

if the transcript is disassembled and/or photocopied in any
21 manner by any party without authorization of the signatory
below.
22
23 Dated this 11th day of February, 2023.
24 /s/ Elizabeth Saint-Loth, RPR, FCRR

25
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From: Howell Chambers

To: GDB (JSPT); JMP (JSPT); MLD (JSPT); Holtzblatt, Ari; Varghese, George; TPW (JSPT); JIP (JSPT); Russell,
Whitney D.; Powell, Benjamin
Cc: Teresa Gumiel
Subject: 23-sc-31: Minute Order (February 7, 2023)
Date: Tuesday, February 7, 2023 3:58:00 PM
EXTERNAL SENDER
Counsel,
Please see the below Minute Order entered today in the above referenced matter. Thank you.
Best,
The Chambers of Chief Judge Howell
U.S. District Court
District of Columbia
IN THE MATTER OF THE SEARCH OF INFORMATION THAT IS STORED AT PREMISES
Case Name:
CONTROLLED BY TWITTER INC. IDENTIFIED IN ATTACHMENT A
Case
1:23-sc-00031-BAH *SEALED*
Number:
Filer:
Document
Number:
Docket Text:
MINUTE ORDER (paperless) GRANTING the government's [5] Motion for Order
to Show Cause; DIRECTING that Twitter, Inc.: (1) By February 7, 2023 at 5:00
PM, comply with the [4] Search and Seizure Warrant, which itself required
compliance by January 27, 2023; and (2) by February 8, 2023 at 5 PM, submit a
list of each case in which Twitter, Inc. has filed a challenge to a non-disclosure
order, issued pursuant to 18 U.S.C. § 2705(b), summarizing for each case the
court's resolution of that challenge; and further ORDERING that Twitter, Inc.
shall be held in contempt if it fails to comply with the [4] Search and Seizure
Warrant by February 7, 2023 at 5:00 PM, and that Twitter, Inc. shall be fined
$50,000, a fine amount that shall double every day, for failing to comply with
this Order, payable to the Clerk of this Court. Signed by Chief Judge Beryl A.
Howell on February 7, 2023. Counsel has been notified electronically.(lcbah4)
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FOR AUTHORIZED PERSONS ONLY
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* * * * * * * * * * * * * * * *
In the Matter of the Search of ) Case No. 23-SC-31
Information That is Stored )
at Premises Controlled by )
Twitter, Inc. )
)
UNITED STATES OF AMERICA, ) February 9, 2023
Interested Party, ) 11:10 a.m.
) Washington, D.C.
TWITTER, )
Interested Party. )
* * * * * * * * * * * * * * * *
SEALED
TRANSCRIPT OF HEARING
BEFORE THE HONORABLE BERYL A. HOWELL,
UNITED STATES DISTRICT COURT CHIEF JUDGE
APPEARANCES:
FOR THE UNITED STATES:

THOMAS WINDOM
MARY DOHRMANN
Office of Special Counsel
(202) 804-7000
FOR TWITTER:
ARI HOLTZBLATT
WHITNEY RUSSELL
BENJAMIN A. POWELL
WilmerHale
Washington, DC 20037 USA
(202) 663-6964
Court Reporter: Elizabeth Saint-Loth, RPR, FCRR

Proceedings reported by machine shorthand.

Transcript produced by computer-aided transcription.
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1 P R O C E E D I N G S
2 THE COURTROOM DEPUTY: Matter before the Court,
3 Case No. 23-SC-31, In the matter of the search of
4 information that is stored at premises controlled by
5 Twitter, Inc. Interested parties, United States of America
6 and Twitter, Inc.
7 Counsel, please come forward and state your names
8 for the record, starting with the government.
9 MR. WINDOM: Good morning, Your Honor.
10 Thomas Windom and Mary Dohrmann for the United States.
11 THE COURT: Yes. Good morning.
12 MR. HOLTZBLATT: Your Honor, Ari Holtzblatt for
13 Twitter.
14 THE COURT: All right. Who else is with you at
15 counsel table, if you would just introduce them again.
16 MR. HOLTZBLATT: I'm sorry. Ben Powell and
17 Whitney Russell.
18 THE COURT: And Mr. Varghese, as I understand, is
19 on his way.
20 MR. HOLTZBLATT: Mr. Varghese is in an interview
21 that could not be rescheduled. So I will be --
22 THE COURT: Okay. I thought we were waiting for
23 somebody.
24 MR. HOLTZBLATT: I'm sorry. Yes. Mr. Aaron
25 Zebley entered an appearance this morning and is on his way.
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1 He is actually outside the building. He will be joining
2 very shortly.
3 THE COURT: So we're not waiting for anybody?
4 MR. HOLTZBLATT: He is trying to get up here. But
5 we don't need to wait for him; I will be presenting.
6 THE COURT: I'm sorry. I had gotten a message
7 that the person who was supposed to be arguing today was
8 delayed, but to begin without him. I just want to make sure
9 the record is correct. I presumed it was Mr. Varghese since
10 that was the person who argued the last time we were here
11 earlier this week. But perhaps I misunderstood.
12 MR. HOLTZBLATT: I think something may have been
13 lost in communication. I will be presenting for Twitter
14 today. My colleague Aaron Zebley is on his way, and will be
15 here shortly.
16 THE COURT: Okay. Fine. Got it. Fine. Because
17 we're not waiting.
18 Okay. So as I look at this and look at the time
19 of the warrant issuance, I look at how far out we are from
20 compliance with the warrant, the representation by Twitter's
21 counsel when we met earlier this week that they could comply
22 by 5 p.m. on the 7th; and there was some compliance, I
23 think, by the deadline.
24 But I understand from the government's email to
25 chambers, with a copy to Twitter's counsel, that there has
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1 not been full compliance with the warrant. I want to just
2 find out today what happened, and where are we on compliance
3 with the warrant. Twitter has had quite some time to comply
4 with the warrant and have everything prepared to turn over,
5 so I am a little bit concerned about where we are.
6 Let me find out first from the government, since
7 we're here at the government's request, what is the
8 government expecting to happen today --
9 MR. WINDOM: Thank you, Your Honor.
10 THE COURT: -- other than counting up the amount
11 of the penalty?
12 MR. WINDOM: Yes, ma'am. A few things.
13 First of all, the government wanted to raise this
14 with Your Honor since it was inconsistent with what was
15 represented in court by Twitter counsel two days ago.
16 Second of all, we want compliance; that's the
17 entire purpose of these repeated proceedings and
18 conversations with counsel, is to get the information that
19 the Court ordered them to produce 13 days ago.
20 Each time we have received an email or had a
21 conversation with counsel over the last 48 hours, we have
22 not been left with any confidence that they have produced
23 everything, that they have a time frame to produce
24 everything, or that they even know the scope of the
25 repositories of information.
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1 Even this morning, when we had a phone call with
2 them, it seemed as if they were attempting to cabin one of
3 the requests in the warrant. The only way to describe the
4 end of the phone call after it concluded, I had felt like I
5 had been getting nickle-and-dimed for the prior 20 minutes
6 of conversation. We need the material. We need it now. We
7 needed it 13 days ago.
8 The purpose of this hearing is to impress upon
9 counsel in a way that apparently the government cannot, that
10 the meter is running. $50,000 accrued at five o'clock two
11 days ago; $100,000 yesterday; $200,000 so far today. It
12 will continue to run until Twitter completely complies with
13 the warrant.
14 THE COURT: All right. So let's hear from you,
15 Mr. Holtzblatt.
16 MR. HOLTZBLATT: Thank you, Your Honor.
17 I would like to address three things that counsel
18 for the government just said: First, what we understood we
19 were producing at five o'clock on Tuesday; second, what we
20 have done since then -- actually, four things -- what
21 remains. And the final item that counsel for the government
22 mentioned about the single category where we discovered this
23 morning that we had a different understanding about what
24 that category represents, and I think it may be -- I
25 ultimately would like --
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1 THE COURT: Well, I am looking at Attachment B,
2 Part 1. We're just going to go through it line by line,
3 something tediously -- I tried to avoid at the last hearing;
4 but it seems like that kind of supervision of Twitter is
5 necessary here.
6 Do you have that in front of you, Mr. Holtzblatt?
7 MR. HOLTZBLATT: I do, Your Honor.
8 THE COURT: Let's start with number 1.
9 All business records and subscriber information in
10 any form kept pertaining to the subject account starting
11 with: A, identity and contact information, past and
12 current, including full name, email address, physical
13 address, date of birth, phone number, gender, and other
14 personal identifiers.
15 Has that been turned over?
16 MR. HOLTZBLATT: Your Honor, I was prepared to
17 identify for you the items that we understand are not yet
18 turned over --
19 THE COURT: Well, it's the same way of doing it.
20 What have you turned over? What is missing?
21 So everything in "A" turned over?
22 MR. HOLTZBLATT: The one item that I know that is
23 not yet turned over but is about to be turned over is the
24 information regarding gender.
25 THE COURT: Which you are still determining
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1 whether you have or not?
2 MR. HOLTZBLATT: No. We have determined that we
3 have the gender information. We spoke to the government
4 about the gender information yesterday.
5 The email communication from the government
6 suggested that the gender field was not necessarily the most
7 pressing of information, but we have gathered it. And, I
8 think, as we speak are producing the gender field
9 information.
10 THE COURT: And everything else in "A," I am
11 understanding from what you said, has been turned over.
12 Is that a correct understanding?
13 MR. HOLTZBLATT: That is my understanding.
14 THE COURT: All right. B. Do I have to read it
15 to you or can you read it yourself?
16 Has everything in B been turned over?
17 MR. HOLTZBLATT: Your Honor. Can you bear with me
18 for one second?
20 MR. HOLTZBLATT: Your Honor, we have turned over
21 information in all categories in B with one exception that
22 we are -- we don't possess in the manner in which it is
23 described in B, and so we're attempting to turn over what we
24 do have.
25 THE COURT: What is that precisely?
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1 MR. HOLTZBLATT: All associated accounts,
2 parentheses, including those linked by machine, cookie, IP
3 address, email address, or any other account or device
4 identifier, that's not -- "associated accounts," as I
5 understand it, is not a category of information that exists
6 in that term within our systems. And so we are attempting
7 to gather a proxy for that, but it's not --
8 THE COURT: What is the proxy you are gathering
9 for that?
11 MR. HOLTZBLATT: We are --
12 THE COURT: Is there a reason why Ms. Russell just
13 has to just sit there as opposed to speaking, since she
14 seems to be the person with the answers?
15 MR. HOLTZBLATT: No, Your Honor. We have
16 collectively gathered the information about the answers. So
17 before I make a representation to you I wanted to confirm
18 that information because I don't want to make an incorrect
19 representation to Your Honor.
20 THE COURT: Of course not. We have already been
21 through that.
22 Okay. So you are still figuring out all of the
23 associated account information in 1B.
24 How long will it take you to figure that out,
25 produce it, collect it, and produce it?
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1 MR. HOLTZBLATT: Well, Your Honor, we don't -- the
2 issue, Your Honor -- there isn't a category of "associated
3 account information"; that's not information that Twitter
4 stores.
5 What we are doing right now is manually attempting
6 to ascertain links between accounts. But the ascertainment
7 of links between accounts on the basis of machine, cookie,
8 IP address, email address, or other account or device
9 identifier is not information that Twitter possesses, it
10 would be information that Twitter needs to create. So
11 that's the reason why we had not previously produced it
12 because it's not a category of information that we actually
13 possess.
14 So what we are trying to do is be -- I would
15 say -- because it's not information --
16 THE COURT: Okay. I am going to do this in a way
17 that makes sense on the record as we're talking about
18 things.
19 Mr. Windom, with respect to the "all associated
20 accounts," have you obtained -- has the government obtained
21 information like that before from Twitter, if you know?
22 MR. WINDOM: I can't make that representation with
23 respect to Twitter.
24 With any number of other electronic communication
25 providers, they keep that information in a consistent form.
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1 To the extent that Twitter does not, it should be
2 a simple process. You have cookies associated with an
3 account; you have the email for the subscriber information;
4 perhaps you have the phone number; you definitely have the
5 IP addresses. Control F that through your system to see
6 what other accounts have come from those IP addresses, are
7 linked to that email address, are linked to the phone
8 number, are linked to the same cookies.
9 I don't profess to be a technological wizard, but
10 it does not seem to be a complex issue.
11 THE COURT: And all associated --
12 MR. HOLTZBLATT: Your Honor.
13 THE COURT: Excuse me. Mr. Windom, you escaped
14 too fast.
15 MR. WINDOM: Sorry, ma'am.
16 THE COURT: "All associated accounts" information
17 is helpful and useful for what reason?
18 MR. WINDOM: It is, as explained more fully in the
19 warrant -- but for these purposes, it is a useful tool in
20 identifying what other accounts are being used by the same
21 user or by the same device that has access to the account.
22 As oftentimes in any number of cases, user
23 attribution is important. And if there are other accounts
24 that a user is using, that is very important to the
25 government's investigation.
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2 MR. HOLTZBLATT: So, Your Honor, all providers are
3 not the same. And it is -- I believe it is correct that
4 other providers possess this information in this form.
5 The warrant, in Section 1 of the warrant, is a BSI
6 request for basic subscriber information. It, therefore, is
7 asking for information that exists, not information that
8 needs to be created.
9 What I understand the government to be asking --
10 and we are -- we were trying to be cooperative, and our
11 communications with the government have aimed at attempting
12 to assist the government -- is for us to create information
13 that does not exist, as opposed to produce information that
14 does exist. We are trying to work with the government. But
15 in terms of compliance with the warrant, the creation of BSI
16 that does not exist, I think, is beyond the scope of the
17 warrant.
18 THE COURT: Well, it's business records and
19 subscriber information in any form kept. You are saying
20 because of the word "kept" you don't have that information
21 as a business record that you maintain?
22 MR. HOLTZBLATT: That's right. If the records --
23 if the linkage between accounts, which is what we understand
24 this category to be referring to, is not itself a piece of
25 information that we keep, then it's not a business record
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1 that we would ordinarily produce.
2 What I understand the government to be asking is
3 for us to analyze our data, as opposed to produce existing
4 data. And we are trying to work with the government in that
5 respect, but that is the reason that it is not something
6 that -- that is a different category of information.
7 THE COURT: All right. 1C, length of service, has
8 that been produced?
9 MR. HOLTZBLATT: We have produced length of
10 service including start date; and I don't know the answer to
11 the rest of 1C.
12 THE COURT: Ms. Russell, do you know the answer?
14 MR. HOLTZBLATT: We have produced everything, but
15 there is no credit card or bank account number information
16 associated with the account.
17 THE COURT: Really? Then how did somebody pay for
18 that account at all, or --
19 MR. HOLTZBLATT: The Twitter services --
20 THE COURT: -- or identify themselves -- that's
21 just one way to identify yourselves as an account user? You
22 don't have to provider that information to use a Twitter
23 account?
24 MR. HOLTZBLATT: That's correct, Your Honor. The
25 Twitter service is free.
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1 THE COURT: All right. D?
2 MR. HOLTZBLATT: Yes. We have produced that
3 information.
4 THE COURT: E?
5 MR. HOLTZBLATT: We have produced that information.
6 THE COURT: And F?
8 THE COURT: G?
10 THE COURT: H?
11 MR. HOLTZBLATT: This is the source of our
12 divergence of understanding with the government that we
13 discussed with the government this morning. Until we had
14 this discussion this morning, we did not understand how --
15 we had a different understanding of what 1H refers to. And
16 if Your Honor will permit, I can explain --
17 THE COURT: Well, for purposes of the record, H
18 is: Communications between Twitter and any person regarding
19 the account including contacts with support services and
20 records of actions taken.
21 It seems pretty plain on its face.
22 Have you reached an understanding now with the
23 government as to the scope?
24 MR. HOLTZBLATT: No. We have attempted and would
25 like to continue to attempt to reach an understanding with
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1 the government as to the scope if Your Honor would permit.
2 THE COURT: I am going to dictate the scope right
3 now: All communications that Twitter had with any person
4 regarding this account including any contacts with support
5 services and records of actions taken. Is that clear?
6 MR. HOLTZBLATT: Well, Your Honor --
7 THE COURT: What don't you understand about what I
8 just said?
9 MR. HOLTZBLATT: We understand 1H to refer to
10 basic subscriber information because it appears in Section 1
11 of the warrant.
12 THE COURT: I think it speaks for itself, and it
13 is not just "basic subscriber information," it is what it
14 says.
15 So have there been communications between Twitter
16 and any person regarding this account -- and given the fact
17 that it was turned off at one point and then turned back on
18 again -- one would think that there would be a lot of
19 communications; and all of those communications would be
20 included.
21 Where are you puzzled as a company?
22 MR. HOLTZBLATT: This is where we are puzzled,
23 Your Honor. 1H appears in Section 1 of the warrant which
24 otherwise refers -- every other category in Section 1 refers
25 to basic subscriber information.
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1 THE COURT: Forget -- forget what you think this
2 category is.
3 It's all business records and subscriber
4 information in any form kept pertaining to the subject
5 account.
6 So any communications between Twitter and anybody
7 else regarding the account -- if it's kept, it's
8 communications regarding the account and subject to that
9 paragraph.
10 MR. HOLTZBLATT: We had understood this category
11 to be defined by the including clause here, which says:
12 Contacts with support services and records of actions taken.
13 We have searched for that information, and are in
14 the process of producing just, I think, two records. What
15 the government explained --
16 THE COURT: Well, that's just including contacts.
17 "Including" does not mean only limited to. "Including"
18 means including that but any other communications as well.
19 MR. HOLTZBLATT: We understand that is how the
20 government communicated to us their understanding of this
21 clause today because it appears in the basic subscriber
22 information section.
23 THE COURT: So the government agrees with what I
24 have just read to you, that that is what the scope is?
25 MR. HOLTZBLATT: So we have done -- we have
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1 attempted to conduct searches today, in light of the
2 conversation we had this morning with the government, to
3 understand the scope of this. What we have found is --
4 based on certain types of searches -- we are talking about
5 millions of emails that include, for example,
6 realDonaldTrump. That is a dramatically broader scope of
7 information than we had understood would be covered by this
8 category. And what we said to the government --
9 THE COURT: Why don't you explain that more.
10 MR. HOLTZBLATT: Why don't I explain what we
11 understood it to mean or what we --
12 THE COURT: No. I understand you thought it was
13 limited to two records with support services; and that's
14 clearly not the full scope of what is covered in H.
15 So based on what the plain text of H means, and
16 you just mentioned -- made reference to millions of emails,
17 what would the response mean to the plain text of this?
18 MR. HOLTZBLATT: So what -- if what the government
19 believes we need to produce for this category -- and we are
20 prepared to be as cooperative as we can be with the
21 government in doing that.
22 The government this morning communicated to us
23 that they were most interested in communications between
24 government officials and Twitter regarding the subject
25 account as captured by this.
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1 If that is what we are to produce, which is not
2 what we had understood was covered by this category until
3 the conversation this morning, then, what we would normally
4 do for that kind of a communication production would be to
5 meet and confer with the government or -- if we were in
6 civil litigation with the opposing party -- identify search
7 terms and, potentially, custodians that would produce a
8 reasonable set of records that we can review and then
9 produce in order to produce a manageable amount of
10 information. That's what we proposed to the government this
11 morning, is that we meet and confer, try to understand what
12 search terms would be effective at narrowing down the
13 search.
14 As I said, when we did a search for -- simply the
15 keyword search of @realDonaldTrump on emails within the
16 Twitter system, it produced millions of hits. I think there
17 are other ways of constructing a search that would produce
18 an appropriate scoped search for this category.
19 THE COURT: And those millions of hits consist of
20 people concerned about Twitter turning off the account, is
21 that why it was millions? Why would it be millions?
22 MR. HOLTZBLATT: Well, that's with only the search
23 term @realDonaldTrump, so that's obviously broader than what
24 Your Honor just said.
25 H says: Communications between Twitter and any
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1 person regarding the account. To give meaning to that in --
2 to be responsive to the government about what they are most
3 interested in with respect to this category, we proposed --
4 and would still propose -- that we meet and confer,
5 understand what a set of search terms would be that would
6 obtain the kind of information that the government is trying
7 to obtain under this category --
8 THE COURT: Mr. Holtzblatt, why are -- are there a
9 million emails? Why are there a million emails? From whom?
10 MR. HOLTZBLATT: Within the Twitter email system.
11 It's not limited to emails -- between people outside the
12 Twitter set of employees and Twitter itself.
13 So we -- so, for example, one way of addressing
14 this category would be to limit our search to -- that was
15 from 2006 to the present. So there is no date limitation
16 within Category 1, which is another reason we understood it
17 to be BSI information.
18 So what would help to narrow this down would be to
19 impose a date limitation, which is not currently within
20 Category 1; to, perhaps, add a set of to/from or bcc, or cc
21 recipients. For example, if the government is interested in
22 specifically communications from government officials, then
23 we can do a: To/from .gov.
24 THE COURT: Okay. Please sit down.
25 Mr. Windom, do you really need that from 2006 to
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1 the present on H?
2 MR. WINDOM: This is the first time I have heard a
3 complaint about a date limitation on 1H. The answer is no.
4 I don't need it from 2006 forward.
5 If we were to pick a date right now, I would say
6 October 1st of 2020 through January 20th of 2021, which is
7 consistent with 1F.
8 But this information about, you know, what it is
9 that we say that we're most specifically interested in, I
10 did not represent that we were most interested in
11 communications between government officials and Twitter
12 regarding the account.
13 We did point out that -- much as Your Honor did
14 just now -- it seemed beyond comprehension that there
15 weren't communications regarding the account when it was
16 suspended and terminated, but that doesn't mean government
17 officials at least cabined to that. It can mean campaign
18 officials. It can be anybody acting on behalf of the user
19 of the account, or the user of the account himself.
20 THE COURT: So any person regarding the account is
21 broader than what you just said, though, Mr. Windom.
22 "Any person regarding the account" is quite broad.
23 It could be all the complaints of all of the Trump
24 supporters out in the world saying: What are you doing,
25 Twitter?
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1 So I take it, from what you just said, that you
2 are interested only in -- rather than "any person," a person
3 who was the subscriber or user of the account or on behalf
4 of that person regarding the account?
5 MR. WINDOM: Yes, ma'am. An agent thereof.
6 THE COURT: All right. How long -- with that
7 clarification, Mr. Holtzblatt, how long will it take Twitter
8 between -- with the date limitation and the limitation on
9 any person, to produce records?
10 MR. HOLTZBLATT: Your Honor, I just want to make
11 sure I understand the limitation.
12 There are two additional limitations that are
13 being placed on 1H, one is -- is that it be limited by date,
14 from October 1st, 2020, to January 20th, 2021, is that
15 correct, or the end of January --
16 THE COURT: January 20th, 2021.
17 MR. HOLTZBLATT: -- January 20th, 2021, and that
18 the individuals covered would be only the owner of the
19 account or an agent of the owner of the account for
20 communications?
21 I will need to talk to my client about how long it
22 will take. But what I can represent to the Court is that,
23 within an hour of today's hearing, I will be able to provide
24 an estimate. And my hope would be that I will be able to
25 produce today that information, but I don't feel like I can
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1 make a representation without first talking to my client
2 about it.
3 THE COURT: All right. Is that sufficient,
4 subscriber or agent of the user of the account?
5 MR. WINDOM: Yes, ma'am, with the qualification
6 that I can't know the universe of who those agents or
7 putative agents may be.
8 THE COURT: Well, how is Twitter going to know
9 that?
10 MR. WINDOM: It would be beyond all comprehension
11 to imagine that, with this account, there is not a file
12 known within the general counsel's office or some other
13 liaison office within Twitter regarding the account with
14 everything that transpired during the relevant time period.
15 THE COURT: We'll see how that goes because
16 hopefully -- I don't want to see you all here again. I am
17 sure none of you want to be here again.
18 All right. So now we're on to 2, which is --
19 MR. HOLTZBLATT: Just on one -- on the agents,
20 Your Honor, one category that I could propose is the
21 representatives of -- that subject to the account assigned
22 to be responsible for all presidential records with respect
23 to the archivist, so there are a limited -- a defined and
24 limited set of individuals who were assigned to be
25 responsible for presidential records. And as we have talked
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1 about before, at least during the relevant time period, both
2 the archivist and Twitter understood these to be
3 presidential records. Whether or not -- I know Your Honor
4 has some questions about that. But in terms of the
5 contemporaneous understanding of the parties, that's how
6 Twitter understood the records --
7 THE COURT: Well, when this account was set up,
8 was there a communication from the person or persons who set
9 up the account with Twitter as to who could access it and
10 who could communicate regarding the functionality and any
11 other concerns about the account?
12 MR. HOLTZBLATT: The account was set up in 2006,
13 Your Honor. A great deal transpired between 2006 and 2020
14 with respect to the individual who is the owner of the
15 account. So I don't -- there is obviously -- there is
16 sign-in information with the account, but you don't need to
17 provide very much information to open a Twitter account. So
18 it's -- it may be surprising to the government or to the
19 Court, but there is not a -- we don't keep dossiers on users
20 in that sense.
21 I can represent to Your Honor that the current
22 email -- we have a name of an individual who is the current
23 email contact for the account, and that is a person who is a
24 credible --
25 THE COURT: What is that name?
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1 MR. HOLTZBLATT: . So I think we can
2 certainly look at the NARA -- the individuals who are
3 assigned to be agents for the account --
4 THE COURT: And expand it beyond to
5 include those people as well?
6 MR. HOLTZBLATT: That's correct, Your Honor.
7 THE COURT: Right.
8 Mr. Windom, I am not sure what else they can do.
9 MR. WINDOM: Your Honor, that's a starting point.
10 We can add names to the extent we think appropriate.
11 I will say this, the letter that they're talking
12 about was signed on January 19th and includes the sitting
13 Assistant Attorney General for the Office of Legal Counsel.
14 I highly doubt that that person is having communications
15 with Twitter in the relevant time period about this account.
16 I would not cabin it to that --
17 THE COURT: Well, I know the NARA representatives
18 are -- limiting it to them would be useless, generally
19 useless.
20 MR. WINDOM: Yes, ma'am.
21 THE COURT: I am fully aware of that. But
22 would not be.
23 MR. WINDOM: is one person I can
24 consult, and add additional names to the extent that their
25 list is not robust.
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1 THE COURT: All right. Well, you can provide the
2 list of names to them.
3 MR. WINDOM: Thank you, Judge.
4 THE COURT: All right. We're on to 2A,
5 Mr. Holtzblatt.
7 THE COURT: And for purposes of the record, so
8 we're all clear, 2 states that the warrant demands: All
9 content, records, and other information relating to
10 communications sent from or received by the subject account
11 from October 2020 to January 2021 including but not limited
12 to: A, content of all tweets created, drafted, favorited,
13 liked, or re-tweeted by the subject account including all
14 such deleted tweets, and all associated multimedia,
15 metadata, and logs.
16 Has that been produced?
17 MR. HOLTZBLATT: Yes, Your Honor. We have --
18 THE COURT: You can stop at "yes," if it's all
19 been produced. If there is an exception --
20 MR. HOLTZBLATT: It's more complicated, so I was
21 going to explain.
22 THE COURT: Okay. That's unfortunate.
23 MR. HOLTZBLATT: At 5 p.m. on February 7th, I
24 think that was our day, we produced all data in this
25 category that was in the standard production tools of
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1 Twitter.
2 We communicated with the government on
3 February 8th that there were prior preservations of the
4 subject account that are not within Twitter's standard
5 production tools and that would, therefore, require
6 engineering to obtain information. And we asked the
7 government whether it wished us to undertake that effort,
8 and the government confirmed that it did.
9 And we have since then -- when we produced on
10 February 7, we indicated to the government in our production
11 letter that there was potentially deleted data that might
12 exist, which is what would be found in prior preservations,
13 but that it would require additional engineering efforts.
14 At 2 a.m. last night, or this morning, Twitter
15 produced additional information from those prior
16 preservations that falls within category 2A. There are --
17 THE COURT: When you say "prior preservations"
18 what are you talking about?
19 Prior litigation holds of some kind or that you
20 had a stash or a cache of preserved data sitting in
21 different places? What are you talking about?
22 MR. HOLTZBLATT: I am referring -- with respect to
23 this particular account, I am referring to preservations
24 from two specific dates.
25 There is a preservation that was made that
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1 includes the subject account covering January 3rd to 9th,
2 2021. There is a second preservation of this that includes
3 this account that covers January 11 to 12, 2021.
4 Those are collections of data that -- they are
5 not -- it's not coterminous with the categories that would
6 exist in the active account right now and -- and that's data
7 that does not exist within a production environment. So
8 it's not data that you can just click -- we have a system to
9 just click a button and produce, which is why we indicated
10 that further engineering efforts might be necessary.
11 We asked the government if they wished us to
12 undertake those efforts. We had an engineer working through
13 the night, after the government asked us to, to undertake
14 those efforts. At 2 a.m. in the morning we produced
15 additional information that came from those preservations.
16 There are two categories of information that --
17 actually, I'm sorry, three categories of information that we
18 are still working to produce because of the engineering
19 challenges associated.
20 One of those categories is the list of -- I am not
21 sure this is from 2A. But I think, for purposes of
22 coherence, it would be helpful for me to describe it now
23 because it connects to this preservation; that is,
24 followers -- a list of followers for this account that were
25 contained within the January 11 through 12th prior
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1 preservation. We have segregated that information. It is a
2 complicated and large set of information. And we are unable
3 to deliver it in the manner that we normally deliver
4 information to law enforcement, which is to send a token.
5 We believe right now it would require physical media to put
6 that information on and to hand it over to the government.
7 This morning we indicated to the government: If
8 there is a mechanism, like an FTP site or something, that
9 you have that you can work with us, we would like to work
10 with you on this. We have it. We have segregated it. We
11 just don't currently have a tool that allows us to produce
12 it to you. So that --
13 THE COURT: This is really just a list of
14 followers attached to the preserved account from January 11
15 through 12, 2021?
16 MR. HOLTZBLATT: That's this particular -- there
17 are two others that I need to address, but that's this
18 particular one that I am addressing. That's correct, Your
19 Honor.
20 THE COURT: Okay. Category two of the three.
21 MR. HOLTZBLATT: As I mentioned, Your Honor, there
22 were two prior preservations, and then there is the current
23 production tools. In two of the three of those sets, the
24 January 3 through 9 and the current one, we have produced
25 the tweets and related tweet information for the account.
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1 In the January 11 to 12th prior preservation, the
2 way that the tweet and tweet-related information is stored,
3 it goes all the way back to 2006. We don't have a
4 warrant -- that is contents of user communications. We
5 don't have a warrant that would permit us to produce the
6 entirety of that information. So what we have is a tool
7 that -- what we refer to as a redaction [sic] tool or a
8 trimming tool. Because this is not a production
9 environment, a human being has to go in and manually trim
10 the information to isolate the date range. That, as I think
11 Your Honor can understand, is a laborious process, including
12 for this particular account, given the time frame; and we
13 need to isolate it, I think, over a three-month, four-month
14 period, I'm sorry, Your Honor. So we are undertaking it.
15 We are underway on that effort, but the second
16 piece of information that we are working on producing but
17 have not yet produced is the tweets for the January 11 to
18 12th prior preservation for the subject account as we
19 undergo the trimming process.
20 THE COURT: Okay. And how long will it take you
21 to produce -- do that trimming process?
22 MR. HOLTZBLATT: I am hopeful that we will be able
23 to finish it today. I don't know that we will be able to
24 finish it today. What I would propose to the government --
25 what we have proposed and what we would propose again is
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1 that we provide updates this afternoon on where we are with
2 that engineering process.
3 We are working as, I think, evidenced by having an
4 engineer come in overnight and work with this tool through
5 the night. We are working very diligently to try to produce
6 this information. We have produced this category of
7 information for two of the three repositories where this
8 type of information is held, and we are working on this last
9 one --
10 THE COURT: And these tweets in the preserved data
11 set from January 11 through 12, 2021, are different from in
12 the current -- your current status of the account?
13 MR. HOLTZBLATT: That's a great question, Your
14 Honor.
15 So they are probably not different and they are
16 certainly not, in any large sense, different. It is
17 possible that between when the account was suspended on
18 January 8th, which is before this preservation occurred, and
19 then it was reinstated recently -- it is conceivable that,
20 after it was reinstated, someone that has access to the
21 account deleted some of the tweets. If that happened, they
22 would be present in the January 11th and 12th, but not in
23 the current one. I don't know. It may be -- I don't know.
24 THE COURT: Okay. I understand.
25 The third category of information that you are
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1 still working on.
2 MR. HOLTZBLATT: The third category is something
3 called fleets with an "F." I will be honest with you, Your
4 Honor, until this morning I didn't know that that was a
5 content category that existed. I am a Twitter user and have
6 worked with Twitter a long time; that was not something that
7 I was aware of.
8 But we are collecting that from the January 11th
9 through 12th production set, and only that set; and it
10 presents, I believe, a similar problem, of having to trim it
11 down. We're working on that well.
12 THE COURT: What precisely is fleets?
13 MR. HOLTZBLATT: It is similar to tweets, and I
14 don't know more than that, Your Honor.
15 THE COURT: You don't use "fleets."
16 MR. HOLTZBLATT: I had not heard of fleets until
17 this morning.
18 THE COURT: And was fleet used on this account?
19 MR. HOLTZBLATT: It is a vanishing tweet.
20 THE COURT: A vanishing tweet.
21 MR. HOLTZBLATT: I guess fleet -- that makes
22 sense, fleeting.
23 THE COURT: Okay. So it's a vanishing tweet. And
24 do you know whether that vanishing tweet or fleet
25 functionality was active on this account? And are you able
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1 to tell that?
2 MR. HOLTZBLATT: I don't, as I stand here now,
3 know whether it was. If there is data -- if there is fleet
4 data in the prior preservation from January 11 and 12th,
5 then that would be -- it would have been active, and that
6 would correspond to it, and that's what we're working to
7 obtain.
8 THE COURT: Okay. So let me interrupt you for a
9 second.
10 Mr. Windom, of these three categories is the
11 government particularly interested in Category No. 1, this
12 list of followers for the account from January 11
13 through 12, 2021?
14 MR. WINDOM: Yes, Your Honor.
15 The answer is going to be yes for all three. I
16 have some additional information that may be of assistance.
17 This is a perfect example of why it was imperative
18 that we come before Your Honor. Twitter counsel has just
19 mentioned two things that we have never heard of before in
20 our calls.
21 What we were told was that there was one
22 preservation done of the entire history of the account on
23 January 11th. This is the first time we are hearing about
24 another preservation between January 3rd and January 9.
25 Second, I have never heard of "fleets" in part of
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1 any discussion that we have had. I don't know if that is
2 information in this account; it may or may not be. It still
3 will be relevant, it still will be responsive.
4 THE COURT: Well, it seems to me that that's a
5 functionality that you would probably understand from the --
6 1C, types of services utilized.
8 THE COURT: But perhaps people -- representatives
9 of Twitter can explain why that's just not indicated in 1C,
10 which is: Functionality uses of the account?
11 MR. WINDOM: I can't speak to that given our
12 review of the material at this point. I do want to point
13 out, though, Your Honor, what Twitter counsel told us, in
14 terms of the preservations, they said that according to
15 Twitter's policies, if the user deletes tweets or direct
16 messages Twitter, nonetheless, retains that information for
17 14 days. These two prior preservations could have deleted
18 tweets, could have deleted direct messages that are not part
19 of the instant production from this year.
20 We know with certainty that there were deleted
21 tweets on January 6th. Twitter said that the President had
22 to delete those tweets in order to reinstate his account
23 from suspension. We do not know if those deleted tweets are
24 part of what we got from this year's preservation versus
25 either of those two prior preservations. That is one of the
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1 reasons it is very concerning to us.
2 I will also point out that the introductory
3 paragraph in the warrant for Part 1 specifically says
4 anything in their holdings -- it mentions including any
5 preservations that were made pursuant to 18 U.S.C. -- I
6 think it is 2703.
7 It is not clear to us whether these preservations
8 were made pursuant to a federal order or just for internal
9 reasons. But, in any event, that opening paragraph of
10 Part 1 clearly covered all of these things. And all of the
11 problems that they say they're encountering and redacting,
12 and going back and looking at things, we're 23 days from the
13 date that the Court entered an order and they're just
14 starting to learn about things now.
15 THE COURT: Okay. So were these -- I mean, I
16 didn't pursue the preservation orders and why they were in
17 place, presuming that they were government orders and you
18 might already know about those. But were these government
19 preservation requests under the Stored Communications Act?
20 MR. HOLTZBLATT: So we don't believe they were,
21 but the individuals who would know definitively are no
22 longer employed with Twitter. But we don't believe that
23 these are 2703; and one of the two is definitely not.
24 That's what I thought, yes.
25 One of the two is certainly not, and the second
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1 one we don't know the answer.
2 THE COURT: Doesn't Twitter keep track of why
3 they're preserving data?
4 MR. HOLTZBLATT: Your Honor, this particular time
5 frame --
6 THE COURT: Like, which order, for how long, and
7 so on?
8 MR. HOLTZBLATT: So I don't know -- yes.
9 THE COURT: Does Twitter keep track of why it's
10 preserving data and pursuant to which order?
11 MR. HOLTZBLATT: So I don't know -- I have two
12 answers, Your Honor. As a general matter, I don't know the
13 answer to your question.
14 In this particular instance, we do not have a
15 record of a government request that corresponds to either of
16 these two preservations.
17 THE COURT: Interesting. Okay.
18 MR. HOLTZBLATT: So if a negative pregnant is to
19 be followed, then it would suggest that these were done not
20 pursuant to a preservation order. But I cannot -- I do not
21 wanted to stand up here and make a representation to Your
22 Honor that I don't know to be true.
23 So I can tell you we do not have a record. I know
24 that one of the two was not; and I don't know the answer as
25 to the other one.
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1 THE COURT: Okay. All right. And for the -- let
2 me just go back for one second just to make sure my notes
3 are complete.
4 For Category 1, the list of followers, did you
5 tell me when you think that is going to be produced?
6 MR. HOLTZBLATT: We need the government's help
7 with this. We have it ready to go, it's simply a question
8 of how to do it --
9 THE COURT: He just needs to know where to do it.
10 MR. HOLTZBLATT: If the government would like us
11 to deliver a hard drive to the FBI office in San Francisco,
12 we can do it today. If they would like us to do it to an
13 FTP site and they can provide us an FTP link, we can do it
14 today. We stand ready to produce that as soon as we have a
15 mechanism to do it.
16 THE COURT: Okay. Mr. Windom, on that issue?
17 MR. WINDOM: I am advised that there is an FTP
18 link in their email in-box now.
19 MR. HOLTZBLATT: Great.
20 THE COURT: Okay. So that can start now.
21 With respect to 2, the time frame is possibly
22 today, possibly tomorrow; no promises on that. But you are
23 going to keep the government updated on the status of two.
24 And for the fleets, what is your time frame?
25 MR. HOLTZBLATT: So the fleets is only as to one
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1 of the three repositories we're talking about, January 11
2 through 12.
3 THE COURT: Right.
4 MR. HOLTZBLATT: That's in the same category as
5 the tweets for January 11 and 12. I am hopeful that we will
6 have it today. I can commit to having -- to providing an
7 update to the government this afternoon about where we stand
8 with that effort; and we are working around the clock.
9 THE COURT: Okay. So you are going to give
10 Mr. Windom and Ms. Dohrmann an update on both 2 and 3, let's
11 say, by 4 p.m. today if you haven't delivered everything by
12 then.
13 MR. HOLTZBLATT: Yes, Your Honor.
14 THE COURT: Okay. Let's move on to B, the content
15 of all direct messages, the DMs: Sent from, received by,
16 stored in draft form, in or otherwise associated with the
17 subject account including attachments, multimedia, header
18 information, metadata, and logs.
19 Am I understanding correctly, Mr. Holtzblatt, that
20 that has been produced, to the extent it's subject to your
21 standard production tool, but to the extent that this data
22 falls in the two preserved caches --
23 MR. HOLTZBLATT: We have also produced --
24 THE COURT: You have also produced it?
25 MR. HOLTZBLATT: That is -- happily, that was one
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1 of the things our engineers were able to pull at 2 in the
2 morning; and that included deleted direct messages and not
3 just nondeleted, but also deleted direct messages.
4 THE COURT: And then 3, content which -- for the
5 record's clarity, 3 asked for: All content records and
6 other information relating to all other interactions between
7 the subject account and other Twitter users from
8 October 20th to January 20, 2021 including but not limited
9 to -- this is where we get into the, A, users the subject
10 account has followed, unfollowed, muted, unmuted, blocked or
11 unblocked, and all users who have followed, unfollowed,
12 muted, unmuted, blocked or unblocked the subject account.
13 Do you want to give me the status of that?
14 MR. HOLTZBLATT: So I -- the one category that is
15 not produced from that is this physical media, this
16 production that we need to do, I guess, through an FTP site
17 that's in my email box or George's, Mr. Varghese's --
18 THE COURT: Which is the Category 1 that you have
19 referred to before; and you are ready to produce that today?
20 MR. HOLTZBLATT: We are ready to produce that
21 today.
22 THE COURT: Got it. Via the FTP site or mechanism.
23 B, all information from the connect or
24 notifications tab for the account including all lists of
25 Twitter users who have favorited or re-tweeted tweets posted
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1 by the accounts, as well as all tweets that include the user
2 name associated with the account, i.e., mentions or replies.
3 MR. HOLTZBLATT: So, Your Honor, this is a
4 category we have not produced, and I want to explain why.
5 The items in 3 are all date limited. This is not
6 a category of information that was -- is contained within
7 the prior preservation, so it's not saying we can go back to
8 January of 2021 and collect to fit it within the time frame.
9 All we have that could conceivably fall within
10 this category is information that is there today. This is
11 dynamic information, so it's information that changes. And
12 so the information that would be contained in this today is
13 a mix of information that might have been responsive to this
14 category and information that is definitely not. Because it
15 is contents of communications, we don't believe we can
16 produce without a warrant the information that's available
17 in this category on our systems today because it is -- it
18 includes a category of information that goes beyond the
19 scope of the warrant. So we don't have a way of
20 disaggregating this information --
21 THE COURT: Meaning, you don't have a way to put a
22 time frame on it?
23 MR. HOLTZBLATT: That's correct, Your Honor.
24 It is information that -- because it's dynamic --
25 whatever is in the account today is not what was in the
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1 account at the time -- at the relevant time frame.
2 THE COURT: I see.
3 MR. HOLTZBLATT: And I don't -- so I don't know if
4 this is important to the government or not. If it is, we
5 have to come up with a different solution. I don't think we
6 actually can -- I don't think we are permitted to produce
7 what we have today.
8 THE COURT: Okay. Well, let me just --
9 Mr. Windom, do you want to think about that or do you want
10 to respond?
11 Do you think Mr. Zebley is standing outside the
12 locked door?
13 MR. HOLTZBLATT: I think there is a chance.
14 THE COURT: Could you check? Poor Mr. Zebley.
15 MR. WINDOM: Should I wait, Your Honor, or
16 proceed?
17 THE COURT: Proceed. In my chambers we wait for
18 no man.
19 MR. WINDOM: Thank you.
20 Your Honor, I mean, the short answer is of course
21 it's important to us. Just by PC -- for it to be in the
22 warrant, and Your Honor signed a warrant with this in it, I
23 don't understand -- I just don't understand the explanation
24 that was given as to what exists or does not exist.
25 It sounds like they have more information than is
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1 responsive and so there can be an overproduction of
2 material. Honestly, I am not clear what they're saying; nor
3 do I understand if the two preservations that they have
4 identified today would somehow ameliorate the problem that
5 they have just raised at the podium.
6 I don't understand the technology behind it. If
7 they would like to explain further or if they would like to
8 talk to me offline, that is fine. The bottom-line --
9 THE COURT: I am going to let you-all talk about
10 this offline.
12 THE COURT: Because I think -- what I am
13 understanding from Twitter is that -- I am not a Twitter
14 user; most judges are not.
15 The connector notifications tab -- I am not
16 exactly sure what that is. But I do understand lists of
17 Twitter used who have favorited or re-tweeted tweets posted
18 by the account.
19 As I understand what Twitter is saying, that is
20 just a mass of data that is not segregated or segregable by
21 date frame -- by a time frame. And so I think that they are
22 having trouble figuring out how to do that.
23 And then, the last part of this is: All tweets
24 that include the user name associated with the account.
25 That could be a lot of data. So I think you need to talk to
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1 them about how to refine that. Okay.
3 THE COURT: C, all contacts and related sync
4 information, produced?
5 MR. HOLTZBLATT: Yes.
6 THE COURT: Okay. All associated logs and
7 metadata, produced?
9 THE COURT: 4, for the record, reads: All other
10 content records and other information relating to the use of
11 the subject account including but not limited to: A, All
12 data and information associated with the profile page
13 including photographs, bios, and profile backgrounds and
14 themes.
17 THE COURT: B, multimedia uploaded to or otherwise
18 associated with the subject account.
20 MR. HOLTZBLATT: With one exception, yes.
21 The one exception is that there is tweet media
22 which are associated with the tweets. And so in the
23 January 11th through 12th repository that we are trimming --
24 that requires the trimming -- that one of the things that
25 has to be trimmed down to includes the tweet media. Other
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1 than that, we have produced for this category.
2 THE COURT: Okay. C, all records of searches
3 performed by the subject account from October 20th to
4 January 20, 2021.
5 Has that been produced, Mr. Holtzblatt?
6 MR. HOLTZBLATT: We have produced saved searches;
7 and we are in the process of producing actual search
8 queries, which can be produced today.
9 THE COURT: Today.
10 MR. HOLTZBLATT: It may have been included in the
11 earlier production, I don't know the answer to that. We are
12 producing additional information of actual search queries
13 today.
14 THE COURT: Okay. D, all location information
15 including all location data collected by any plug-ins,
16 widgets or the quote-unquote tweet with location service
17 from October 20th to January 20, 2021.
18 MR. HOLTZBLATT: Yes. We have produced what we
19 have. It is not something we normally have, so it may be a
20 small or null set. But to the extent we have it, we have
21 produced it.
22 THE COURT: Okay. E, information about the
23 subject account's use of Twitter's link service including
24 all longer website links that were shortened by the service,
25 all resulting shortened links or information about the
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1 number of times that link posted while the subject account
2 was clicked, which is a lot of information in there.
3 MR. HOLTZBLATT: Yes. We have not -- we have not
4 produced this information. We're struggling to understand
5 what would be responsive, and it's one we're continuing to
6 work on and would like to be able to continue to talk with
7 the government to make sure we understand what they
8 understand would fall in this category, so we're working on
9 it.
10 THE COURT: Can I just ask why is it that when
11 there are questions about the scope, and so on -- to be
12 quite honest, we are J.D.s, we are not IT professionals. So
13 it's oftentimes the case that, when we lawyers look at
14 language, we have to confer with IT to find out what is
15 feasible, what they have, how much longer it is, does it
16 exist, and so on.
17 So why is it on February 9th you-all are just
18 starting to have that conversation?
19 MR. HOLTZBLATT: Well, Your Honor --
20 THE COURT: When I do take, at face value,
21 Twitter's representation in connection with its motion
22 challenging the NDO, that it was perfectly prepared to
23 comply with this warrant?
24 MR. HOLTZBLATT: So I would like to explain that,
25 Your Honor.
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1 THE COURT: It's a puzzle from where I sit.
2 MR. HOLTZBLATT: I'm sorry, Your Honor.
3 In communication with the government
4 prior to any filing in this case, one of the things that
5 said to the government was: Once these issues, by which
6 meant what was the subject of our -- what is still the
7 subject of our pending motion -- what was the subject of the
8 government's motion are resolved, which we understood to be
9 the big question -- there are some technical issues that we
10 will need to discuss with respect to this account. These
11 are the kinds of things was referring to, about
12 the need to talk about technical information.
13 That's everything from: We have a standard
14 production tool, which is how -- for thousands of warrants
15 we produce information --
16 THE COURT: So was putting the cart before the
17 horse. should have been working on getting the warrant
18 production ready to go while she litigated whatever else
19 Twitter wanted to litigate.
20 Okay. Well, that's been clear from the process
21 here.
22 Okay. So let's break down E.
23 So information about use of Twitter's link
24 service, which is shortening longer website links. Does
25 Twitter maintain that information, when a Twitter user
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1 accesses and uses the link service?
2 You can tell me you don't know if you don't know.
3 MR. HOLTZBLATT: I think the safest thing for me
4 to say to Your Honor would be that I don't know the answer.
5 It is something that, I think, we are trying to produce
6 today; but it is also something that there was some
7 confusion about what it is. To the extent there remains
8 confusion, we will speak with the government and continue
9 speaking with the government until we have eliminated that
10 confusion.
11 And if it is available -- I think I am saying that
12 it is not hard to produce. We will endeavor to produce it
13 today. And if not, we will provide an update and explain
14 why we have not at the end of this afternoon, at four
15 o'clock.
16 THE COURT: This may be why the government keeps
17 insisting at each of these meetings that a personal
18 representative from Twitter be sitting at the table to
19 answer more technical questions. I am not sure why they
20 keep asking for a personal representative, but perhaps
21 that's one reason.
22 You are going to find that out. It will be
23 produced today if Twitter maintains it?
24 MR. HOLTZBLATT: It will be produced today if we
25 maintain it. And with the only caveat that if, for some
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1 reason, there is an engineering challenge that we cannot
2 overcome today, I will give an update to the government at
3 four o'clock and explain that.
4 THE COURT: Okay. And then -- so if the account
5 user used the link service. And then, the second part of
6 this is: All resulting shortened links. And then, the
7 third part of it is: The number of times that a link posted
8 by the subject account was clicked.
9 Do you understand what that means by "clicked"?
10 MR. HOLTZBLATT: I understand what it would mean
11 to click a link. I don't know if that is information that
12 Twitter maintains, the information about the clicking of
13 links that have been shortened through any link service. I
14 don't know the answer to that.
15 THE COURT: Because, certainly, the source link
16 might maintain the number of clicks on its link. But does
17 Twitter maintain information about those number of clicks
18 for links accessed via Twitter?
19 MR. HOLTZBLATT: I don't know. That is not
20 standard information that Twitter produces. I have some
21 doubt about whether this is information that Twitter
22 maintains, but I am not going to make a representation to
23 the Court when I don't know.
24 THE COURT: Mr. Windom.
25 Let's get clarity right now on what is being
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1 requested in 4E.
2 Just reading the English here, I think it reads --
3 but you can correct me if I'm wrong -- it's requesting three
4 things, the number of times the user of this account
5 accessed and used Twitter's link service which shortens
6 links -- so far so good?
8 THE COURT: And then the second thing is what were
9 the shortened links.
11 THE COURT: Is that right?
13 THE COURT: And then, finally, any information
14 that Twitter has about the number of times that a link
15 posted by the subject account was actually clicked, which
16 is, basically, clicking on the tweet -- clicking on a link
17 embedded in a tweet.
18 Is it the government's information that this is
19 information that can be preserved, maintained, collected by
20 an electronic communications provider like Twitter.
21 MR. WINDOM: Yes, ma'am. And there is some
22 reference to this in the affidavit I will read briefly.
23 Twitter tracks --
24 THE COURT: In the affidavit?
25 MR. WINDOM: Ma'am?
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1 THE COURT: In the affidavit?
3 THE COURT: Which is currently sealed, and Twitter
4 hasn't seen it?
5 MR. WINDOM: This is a line that is a statement of
6 fact responsive to your question.
7 THE COURT: What a privilege to --
8 MR. WINDOM: "According to the government's
9 information, Twitter tracks how many times these shortened
10 links are clicked." Period, full stop.
11 THE COURT: Well, we'll find out if that
12 representation in the affidavit is correct, but that is
13 certainly information that the government has.
14 The government has been living and working and
15 obtaining information from Twitter since its existence,
16 probably, so they have experience before they put that in
17 their affidavit. Perhaps that can help counsel in
18 communicating with Twitter.
19 MR. HOLTZBLATT: Thank you, Your Honor. I
20 appreciate that.
21 THE COURT: Okay. All right. So E, 4 p.m. update
22 to the government today, Mr. Holtzblatt, about how much of
23 that you can produce, and when.
24 MR. HOLTZBLATT: Yes, Your Honor.
25 THE COURT: All right. I think that's it for what
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1 hasn't been produced, and a time frame for production.
2 It's clear to me that Twitter didn't comport or
3 comply with the deadline by 5 p.m. on February 7th and is
4 working hard to do so now. So that's good news.
5 When production is complete, I will expect the
6 government to let me know and what the government's
7 calculation is at that point because I am not keeping count
8 of the penalty, but I am sure the government will. I will
9 enter an order at that time for the amount. And, hopefully,
10 the government will confer with Twitter that everybody is
11 counting the days the same way and doing the math the same
12 way. But $50,000 a day is a pretty big -- easy to calculate
13 round number even for us J.D.s. Hopefully, this production
14 will get wrapped up promptly.
15 Is there anything further today, Mr. Windom?
16 MR. WINDOM: No, ma'am. Thank you, Your Honor.
17 THE COURT: Anything further from Twitter?
18 MR. HOLTZBLATT: No, Your Honor.
19 THE COURT: All right. Hopefully, I won't see you
20 all again. You will be able to work this out.
21 I will just wait for your submissions on Twitter's
22 motion, and then we'll proceed from there. As I said, I was
23 hoping that the hearing we had on Tuesday pretty much covers
24 most of the issues that I might be concerned about with both
25 motions that were pending in front of me. But, as I said,
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1 if something comes up in the briefing where I think I
2 need -- another hearing is necessary on Twitter's motion,
3 we'll hold it then.
4 All right. If there is nothing else, you are
5 excused.
8 (Whereupon, the proceeding concludes, 12:15 p.m.)
9 * * * * *
10 CERTIFICATE
11
12 I, ELIZABETH SAINT-LOTH, RPR, FCRR, do hereby
13 certify that the foregoing constitutes a true and accurate
14 transcript of my stenographic notes, and is a full, true,
15 and complete transcript of the proceedings to the best of my
16 ability.
17 This certificate shall be considered null and void
18 if the transcript is disassembled and/or photocopied in any
19 manner by any party without authorization of the signatory
20 below.
21 Dated this 11th day of February, 2023.
22 /s/ Elizabeth Saint-Loth, RPR, FCRR

23
24
25
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IN THE MATTER OF THE SEARCH OF: Case No. 1:23-SC-31 – BAH

TWITTER’S NOTICE REGARDING APPLICABILITY OF SANCTIONS
Twitter, Inc. writes to set forth its position on the extent of any penalty that should be
imposed on Twitter pursuant to the Court’s February 7 order compelling Twitter to comply with
the government’s warrant.
Twitter does not believe any accrued penalty is appropriate. “[S]ubstantial compliance
… is a complete defense in a civil contempt proceeding.” Brotherton v. Lehman, 1984 WL 66
(D.D.C. 1984); see also Cobell v. Babbitt, 37 F. Supp. 2d 6, 9-10 (D.D.C. 1999) (“To rebut a
prima facie showing of civil contempt, the contemnor may assert the defense of ‘good faith
substantial compliance.”). Here, Twitter at all times acted in good faith and had substantially
complied with the warrant by 5:00 pm on February 7, 2023 by using its standard tools for
responding to law enforcement requests. Twitter’s February 7 production included 39 data sets
containing over 100 data fields, folders, or JSON files.
Twitter produced supplemental data after 5:00 pm on February 7, 2023 but Twitter
submits that this supplemental production does not warrant imposition of any penalty, and in all
events, it does not warrant imposition of the $350,000 penalty that the government seeks.
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Twitter’s supplemental production resulted from two issues that Twitter had sought to raise with
the government prior to the Court’s February 7 hearing and that were ultimately resolved only
after subsequent conferrals with the government and the Court’s hearing on February 9.1 Twitter
swiftly completed production once it had received necessary guidance from the government and
the Court.
The Government’s Non-Standard Requests
The first issue on which Twitter needed guidance concerned the technical and operational
challenges of responding to certain non-standard requests in the warrant. These requests fell
outside the ordinary categories of information captured by the tools that Twitter uses to respond
to the thousands of warrants, 2703(d) orders, and subpoenas it receives each year. Given the
challenges and technical issues of responding to such non-standard requests, Twitter sought to
raise this issue with the government prior to the February 7th hearing without success. See supra
n.1. Following the hearing, Twitter contacted the government on February 8 at 11:56 am to
determine whether the government wished Twitter to take the extraordinary efforts that would be
required to collect and produce this non-standard data, which in several instances would be
challenging even to locate within the company’s systems.
Counsel for Twitter and the government met and conferred at February 8 at 5:30 pm. At
8:51 pm on February 8, the government confirmed that it did indeed wish Twitter to collect and
1
Prior to any hearing before the Court, on February 1, 2023, Twitter conveyed to the
government that “we will want to further discuss with you Attachment B and technical issues we
will need to work through in responding,” separate and apart from Twitter’s position that
compliance with the warrant should be delayed until the resolution of its motion to quash the
non-disclosure order. Decl. ¶ 14. The government declined Twitter’s request to discuss
these issues with Twitter at that time and instead moved the Court for an order to show cause
why Twitter should not be held in contempt.
2
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produce non-standard data. Twitter accordingly worked through the night and the next day to
overcome the technical challenges presented by the government’s request. Twitter produced
certain supplemental data at around 2:00 am ET in the morning of February 9 (approximately
five hours after the government confirmed it wanted Twitter to go outside its standard law
enforcement tools) and completed its supplemental production of non-standard data by 8:06 pm
ET on February 9,2 less than 24 hours after the government had confirmed that it wished Twitter
to undertake these efforts.
Guidance Regarding Certain Requests
The second issue on which Twitter needed guidance from the government and the Court
concerned the scope of certain requests in the warrant. Request 1(h) seeks “communications
between Twitter and any person regarding the account, including contacts with support services
and records of actions taken.” This request could potentially have been read to encompass all
communications with any party and an employee at Twitter regarding the subject account from
2006 until the present, a potentially vast scope of data. During the February 9 call, the
government would not provide any further guidance on this request.
At the hearing on February 9, however, the Court recognized the need for guidance given
the breadth of Request 1(h) and consequently defined the scope of the Request to
communications between October 1, 2020 and January 20, 2021 with 8 identified individuals
regarding the subject account, and permitted the government to meet and confer with Twitter to
2
We believe the government incorrectly labeled this production as occurring at 5:03pm Eastern
(Gov’t Notice at 1) because its FTP site may have date/time stamped the upload using Pacific
time. For the reasons stated below, the government’s claim that a purported three-minute
delinquency requires a $200,000 penalty is equally unreasonable even with the correct time.
3
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potentially identify additional agents who the government believed might have communicated
with Twitter about the subject account on behalf of the accountholder during that time period.
(Transcript of Hearing, February 9, 2023, 13:10-24:3.) The government provided Twitter a list
of additional email addresses that it wished Twitter to search at 3:52 pm ET on February 9, 2023.
Although Twitter believed that the government’s list was overbroad, Twitter nonetheless
completed a search using the government’s list and included the identified communications in its
final production at 8:06 pm ET on February 9.
The Government’s Calculation Is Unreasonable
Prior to the first hearing before the Court on February 7, Twitter attempted to confer with
the government about the technical and operational challenges of responding to its requests. In
addition, Twitter had a good faith, legal disagreement about whether production should have
been stayed pending resolution of its challenge to the non-disclosure order. Once the Court
rejected Twitter’s position, Twitter moved swiftly that same day to comply—not only by
substantially completing production using its standard production tools before 5:00 pm on
February 7, but also by working around the clock and overcoming significant technical issues to
produce supplemental data shortly thereafter. In light of Twitter’s diligence, substantial
compliance, and good faith, Twitter believes that no penalty is warranted here.
In all events, however, Twitter objects to the incremental $200,000 that the government
seeks to impose for the period after 5:00 pm on February 9, 2023. As set forth above, Twitter
was still receiving clarification on the government’s position regarding the scope of the warrant
up until 3:52 pm on February 9—just 68 minutes before the government believes this final
$200,000 penalty was triggered. Twitter then completed its production—including with respect
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ATTACHMENT A
GOVERNMENT’S SEALED OPPOSITION TO TWITTER INC.’S MOTION TO

VACATE OR MODIFY NON-DISCLOSURE ORDER AND STAY TWITTER’S
COMPLIANCE WITH SEARCH WARRANT
For what appears to be the first time in its history, Twitter Inc. (“Twitter”) has filed a
motion to vacate or modify an order that it not disclose the existence of a search warrant. ECF
No. 7. Twitter takes this extraordinary action only for the account subject to the warrant:
@realDonaldTrump (“Account”), used by former president Donald J. Trump. For the reasons
stated in the application in support of the non-disclosure order (“NDO”) and expanded upon here,
there is reason to believe notification to the former president, a sophisticated actor with an
expansive platform, would result in a statutorily cognizable harm. Yet Twitter, using the First
Amendment as pretense, apparently wants the Court to place Twitter’s economic interests over the
Court’s findings in the NDO—and the integrity of the Government’s ongoing investigation. The
Court should deny Twitter’s Motion.
BACKGROUND
Twitter is an electronic service provider that enables account holders to share and interact
with content and to send and receive communications with other users, publicly or privately. The
former president, from the Account, used Twitter in ways described in the Government’s ex parte
submission.
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I. The Warrant
On January 17, 2023, based on an affidavit establishing probable cause, this Court
authorized a warrant (the “Warrant”) to search the Account. ECF No. 4, Affidavit in Support of
Application for a Search Warrant (the “Affidavit”), at ¶ 8. The Warrant incorporates by reference
two attachments—describing the “Property to Be Searched” (Attachment A) and the “Particular
Things to Be Seized” (Attachment B)—but not the warrant application or the probable cause
Affidavit. ECF No. 4, at 2. In other words, of the extensive application, the Warrant itself (as
served on Twitter) comprises only six pages. See Exhibit A. Nevertheless, those six pages reflect
(1) the existence of the Warrant; (2) the Court and Judge from which the Warrant was obtained;
(3) the date and time of the Warrant’s issuance; (4) the specific account subject to the Warrant; (5)
the specific categories of information sought by the Government, including certain content, subject
areas, and persons of interest; and (6) the name, title, and official address of the agent with the
Federal Bureau of Investigation (“FBI”) to whom responsive information should be disclosed. Id.
II. The Non-Disclosure Order
When it authorized the Warrant, the Court also issued an order sealing the Warrant and
related materials and requiring, under 18 U.S.C. § 2705(b), that Twitter not disclose the contents
or existence of the Warrant for a period of 180 days. ECF No. 3. 1 The NDO was granted based
on facts showing that notifying the former president would result in destruction of or tampering
with evidence, intimidation of potential witnesses, or other serious jeopardy to an investigation or
1
The Government’s NDO application was based on § 2705(b)(3)-(5), ECF No. 3, ¶ 10, but its
proposed non-disclosure order erroneously included language from § 3103a(b), which applies to
delayed-notice Rule 41 warrants (not ECPA warrants) and which errantly included flight from
prosecution as a predicate. The Government now seeks to strike from the NDO this language,
which can be found at the bottom of page two of the NDO.
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delaying of trial. See 18 U.S.C. § 2705(b)(3)-(5); NDO at 1. Facts supporting the NDO are
detailed in the Government’s ex parte submission.
III. Procedural History
The Warrant commanded that Twitter disclose responsive information to the Government
within ten days of its issuance, that is, by January 27, 2023. ECF No. 4, Attachment B.I, ¶ 5.
Twitter was served with the Warrant, including Attachment A and Attachment B.I, see Exhibit A,
and the accompanying NDO, but refused to comply with the Warrant’s deadline. Consequently,
on February 2, 2023, the Government filed a Motion for an Order to Show Cause Why Twitter
Inc. Should Not Be Held in Contempt for Failure to Comply with a Search Warrant. ECF No. 5.
Later that same day, asserting in part that its “ability to communicate with its customers about law
enforcement’s efforts to access their communications and data . . . is essential to its business
model,” Twitter filed a motion to vacate or modify the NDO now pending before the Court. ECF
No. 7; ECF No. 7-1, Twitter Inc.’s Memorandum of Points and Authorities in Support of Motion
to Vacate or Modify Non-Disclosure Order Issued Pursuant to 18 U.S.C. § 2705(b) and Stay
Twitter’s Compliance with Search Warrant (“Twitter’s Mem.”), at 4.
After a hearing on February 7, 2023, the Court granted the Government’s Motion and
ordered Twitter to comply with the Warrant by 5:00 p.m. that day or be held in contempt and
subject to a fine of $50,000, to double every day of continued non-compliance with the Warrant.
See Min. Order, dated Feb. 7, 2023. While Twitter made a production before 5:00 p.m. on
February 7, it was not complete. Following multiple further conferences between the Government
and Twitter, as well as a hearing before the Court on February 9, 2023, Twitter finally asserted
compliance with the search warrant on February 9, 2023, at 8:28 p.m. Accordingly, Twitter was
in contempt until at least February 9, 2023, at 8:28 p.m. and should be subject to a $350,000 fine
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as a result. See ECF No. 19.
At the February 7 hearing, Twitter acknowledged that it had not “found any court decision
in which a third-party company, like Twitter, has successfully stayed compliance with a search
warrant pending a First Amendment challenge to a non-disclosure order.” Sealed Hr’g Tr. (Feb.
7, 2023) at 61. The Court ordered Twitter to “submit a list of each case in which Twitter, Inc. has
filed a challenge to a non-disclosure order, issued pursuant to 18 U.S.C. § 2705(b), summarizing
for each case the court’s resolution of that challenge.” Min. Order, dated Feb. 7, 2023. Twitter
included in its response cases not involving § 2705(b), and even cases where Twitter simply
“asserted,” in Twitter’s parlance, an informal—i.e., not “filed”—challenge to the NDO. ECF No.
14. Twitter’s list reveals that Twitter has never before, in its sixteen years of operating, filed a
challenge to an NDO issued pursuant to § 2705(b) for a warrant.
The Government now opposes Twitter’s Motion.
ARGUMENT
I. The Non-Disclosure Order is constitutional under the First Amendment.
A. Statutory background
Congress enacted the Stored Communications Act (the “SCA”) in 1986, as part of the
Electronic Communications Privacy Act, Pub. L. No. 99-508, 100 Stat. 1848 (1986). In pertinent
part, the SCA regulates the Government’s access to electronic communications and information
stored by electronic communications service providers and remote computing providers, like
Twitter. Within the SCA, Section 2703 defines how the Government obtains records and
information pertaining to the users of electronic services. See generally 18 U.S.C. § 2703(a)-(c).
Section 2703 provides for different means of obtaining the evidence—including grand jury
subpoenas, court orders under Section 2703(d), and search warrants—and different levels of
privacy protection depending on the type of evidence sought. See § 2703(c)(2).

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Section 2705(b) complements Section 2703 by authorizing the Government to seek a court
order to prevent an electronic communications service provider from disclosing the fact that it has
received Section 2703 process regarding a user. See 18 U.S.C. § 2705(b); In re United States for
an Order Pursuant to 18 U.S.C. § 2705(b), 289 F. Supp. 3d 201, 208 (D.D.C. 2018). At the
Government’s request, a court may issue a non-disclosure order “for such period as the court deems
appropriate,” based upon an independent judicial determination that “there is reason to believe that
notification of the existence of the [legal process pursuant to Section 2703] will result” in (1)
endangerment of a person’s life or physical safety; (2) flight from prosecution; (3) destruction of
or tampering with evidence; (4) intimidation of potential witnesses; or (5) seriously jeopardizing
an investigation or unduly delaying a trial. 18 U.S.C. § 2705(b). The SCA’s statutory scheme
thus requires that, once a court has found that the Government has demonstrated a “reason to
believe” that disclosure would result in one or more of the listed harms, the court must issue an
order prohibiting the service provider to whom the Section 2703 process is directed from notifying
“any other person” of the legal process for a period of time that the court deems appropriate. Id. 2
Section 2703 process, and related Section 2705(b) orders, are employed in a wide array of
contexts, often involving grand jury investigations that are not yet public or where only some
aspects of the investigation are publicly known. The Government may seek basic subscriber
2
Section 2705(b) is far from the only statute limiting disclosure of information related to
government investigations. See, e.g., 18 U.S.C. § 3420 (providing that “[n]o officer, director,
partner, employee, or shareholder of, or agent or attorney for, a financial institutional shall, directly
or indirectly, notify any person named in a grand jury subpoena served on such an institution in
connection with an investigation . . .”); 18 U.S.C. § 2511 (governing disclosures of wiretap
surveillance; 18 U.S.C. § 3123 (governing disclosures of pen registers and trap-and-trace devices);
see also Lee v. Bankers Tr. Co., 166 F.3d 540, 544 (2d Cir. 1999) (observing that “even in a suit
for damages based on disclosures allegedly made in a [suspicious activity report (“SAR”)], a
financial institution cannot reveal what disclosures it made in a SAR, or even whether it filed a
SAR at all”).
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information at an early stage of an investigation, when investigators know nothing more than an
IP or email address used in connection with a potential crime, and the identity of the individual is
unknown. And the Government may seek a court order under Section 2703(d) to gather further
information, such as identifying information about individuals with whom a suspect is
communicating as an investigation progresses. Where, as here, probable cause exists to believe
that the contents of an electronic account include evidence of a crime, warrants are sought to obtain
such evidence.
In all of these situations, absent the limited secrecy provided for under the SCA, the ability
of grand juries and government investigators to accumulate evidence and identify wrongdoers
would be seriously undermined by an electronic communications service provider’s decision to
inform the target of legal process, or other potentially involved third parties, about the existence
of, or steps taken in, a grand jury investigation. In recognition of the evolving nature of
investigations, the U.S. Department of Justice policy regarding applications for orders pursuant to
Section 2705(b) notes that “[w]hen applying for a § 2705(b) order to accompany a subpoena
seeking basic subscriber information in an ongoing investigation that is not public or known to the
subject(s) of the investigation, stating the reasons for the protection from disclosure under
§ 2705(b) . . . usually will suffice.” U.S. Dep’t of Justice, Policy Regarding Applications for
Protective Orders Pursuant to 18 U.S.C. § 2705(b), at 2 n.2 (Oct. 19, 2017). “At a later stage of
the investigation,” the policy notes, such as “when a search warrant is being sought, the prosecutors
should include more specific facts, as available, in support of the protective order.” Id.; see also
U.S. Dep’t of Justice, Supplemental Policy Regarding Applications for Protective Orders Pursuant
to 18 U.S.C. § 2705(b), at 2 (May 27, 2022) (noting the prosecutors “must provide a court with
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sufficient facts to permit the court to conduct” a “case- and fact-specific analysis,” including by
“identify[ing] which of the pertinent factors apply”).
B. The Non-Disclosure Order survives strict scrutiny.
Twitter contends that the NDO cannot withstand strict scrutiny. 3 Twitter’s Mem. 7–15.
Under strict scrutiny, the challenged NDO is valid if it is “narrowly tailored to serve compelling
state interests,” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), and there are no “less restrictive
alternatives [that] would be at least as effective in achieving the [NDO’s] legitimate purpose,”
Reno v. ACLU, 521 U.S. 844, 874 (1997). The NDO at issue here satisfies strict scrutiny. See
Matter of Subpoena 2018R00776, 947 F.3d 148, 159 (3d Cir. 2020) (Matter of Subpoena)
(applying strict scrutiny and affirming district court order denying challenge to a non-disclosure
order under Section 2705(b)); Matter of the Search of Information Associated with E-mail
Accounts, 468 F. Supp. 3d 556, 560–63 (E.D.N.Y. 2020) (E-mail Accounts) (applying strict
scrutiny and denying Microsoft Corporation’s challenge to a non-disclosure order under Section
2705); Google LLC v. United States, 443 F. Supp. 3d 447, 452–55 (S.D.N.Y. 2020) (same for
challenge brought by Google); cf. In re National Security Letter, 33 F.4th 1058, 1063 (9th Cir.
2022) (applying strict scrutiny and affirming a non-disclosure order obtained in connection with a
national security letter issued under 18 U.S.C. § 2709(c)).
3
No precedent from this Court or the D.C. Circuit has concluded that strict scrutiny applies when
an electronic service provider challenges a non-disclosure order, and there are good reasons not to
apply such “exacting” review to a non-disclosure order that “is not a restraint imposed on those
who customarily wish to exercise rights of free expression, such as speakers in public fora,
distributors of literature, or exhibitors of movies.” John Doe, Inc. v. Mukasey, 549 F.3d 861, 877–
78 (2d Cir. 2008). Because the NDO here nonetheless survives strict scrutiny, the Court can
assume without deciding that it applies. See Google LLC v. United States, 443 F. Supp. 3d 447,
452 (S.D.N.Y. 2020) (adopting that approach).
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i. The Non-Disclosure Order serves a compelling interest.
The compelling government interests at stake include preserving the integrity and secrecy
of an ongoing investigation. “Maintaining the integrity of an ongoing criminal investigation is a
compelling government interest.” E-mail Accounts, 468 F. Supp. at 560 (citation omitted). The
interest is particularly “acute” where, as here, the investigation remains ongoing. Matter of
Subpoena, 947 F.3d at 156. And that interest is all the more compelling for the reasons described
in the ex parte submission. Cf. Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and
inarguable that no governmental interest is more compelling than the security of the Nation.”)
(quotation omitted).
Closely linked to the compelling interest in maintaining the integrity of an investigation is
protecting its secrecy, which in turns facilitates its “proper functioning.” Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 218 (1979). Relatedly, erosion of grand jury secrecy “substantially
increase[s] the ability of persons who have something to hide to impede legitimate investigations.”
SEC v. Jerry T. O’Brien, 467 U.S. 735, 750 (1984). Such secrecy also furthers several additional
governmental interests, including (1) “prevent[ing] the escape” of individuals who may be
indicted; (2) ensuring free deliberations by the grand jury, while “prevent[ing] persons subject to
indictment or their friends from importuning the grand jurors”; (3) forestalling efforts to suborn
perjury or tamper with witnesses; and (4) “encourag[ing] free and untrammeled disclosures by
persons who have information with respect to the commission of crimes.” Matter of Subpoena,
947 F.3d at 157 (citing Douglas Oil Co., 441 U.S. at 291 n.10). Although articulated in the context
of grand jury investigations, those factors parallel similar considerations described in Section
2705(b), including destroying or tampering with evidence, intimidating witnesses, or “otherwise
seriously jeopardizing an investigation or unduly delaying a trial.” 18 U.S.C. § 2705(b)(3)-(5).
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For the reasons explained in the Government’s ex parte submission, the NDO serves a
compelling governmental interest.
Twitter offers (Twitter’s Mem. 8–14) two unpersuasive arguments to the contrary. First,
Twitter contends (id. at 8–12) that because some aspects of the investigation are publicly known,
it “strains credulity to believe” that providing the Warrant to the former president will “alter the
current balance of public knowledge in any meaningful way” because such a disclosure would be
merely “incremental.” Id. at 11. That contention is flawed in several respects. Although the
investigation’s existence is no longer secret, it does not follow that the specific ongoing
investigative steps the Government is pursuing are therefore publicly known. Many of the media
accounts that Twitter cites (id. at 8–10) attempt to fill in gaps based on discrete pieces of
information or courthouse sightings of witnesses. 4 Whatever the effect of those accounts on the
“current balance of public knowledge,” id. at 11, they provide nowhere close to the detail supplied
in the Warrant. Providing the Warrant to the former president at this point in the investigation
would thus far exceed some mere “incremental” step in informing the former president, as
described in the ex parte submission.
Second, Twitter argues (Twitter’s Mem. 12–14) that “[u]nique and [i]mportant” (id. at 12)
executive privilege issues support the relief it seeks. That argument is also wanting. For one,
Twitter does not explain the relevance of a putatively “unique” or “important” issue to strict
scrutiny analysis, which asks whether the NDO sought under Section 2705(b) is narrowly tailored
to serve a compelling governmental interest. See In re National Security Letter, 33 F.4th at 1072.
A Twitter user’s potential ability to challenge the legal process at issue—here, the Warrant—is
4
The same is true of the 80 pages of articles and other documents that Twitter submitted as an
exhibit to its opposition to the Government’s Motion to Show Cause. See Twitter’s Opposition to
Government’s Motion for an Order to Show Cause, Exhibit B (filed Feb. 6, 2023).
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entirely distinct from the First Amendment concerns that Twitter claims it seeks to further through
its own challenge to the NDO. See, e.g., Twitter’s Mem. 3 n.1 (Twitter not challenging the
Warrant’s validity); id. at 4 (Twitter acknowledging it “might lack standing to assert the rights and
privileges of its users,” and acknowledging many potentially privileged communications in which
its users could engage). But even if the executive privilege claim that Twitter postulates bore some
relevance to the NDO, that claim lacks merit for the reasons given in the Government’s briefing
in the show cause litigation. See Government’s Reply in Further Support of Motion for an Order
to Show Cause Why Twitter Inc. Should Not be Held in Contempt for Failure to Comply with a
Search Warrant, at 6–9 (filed Feb. 6, 2023).
ii. The Non-Disclosure Order is narrowly tailored.
The NDO is narrowly tailored to serve the Government’s compelling interest because any
restriction on Twitter is the least restrictive means of advancing governmental interests. See
Matter of Subpoena, 947 F.3d at 157–58. The NDO restricts Twitter from disclosing only discrete
investigation-related information—information that is in Twitter’s hands only because it received
legal process in connection with the investigation. And the NDO is limited in duration.
The scope of speech regulated by the NDO is extremely narrow. The NDO prohibits
Twitter from disclosing the existence or contents of the Warrant. The NDO does not purport to
regulate Twitter’s ability to speak about any other topic, such as the issue of non-disclosure orders
generally or any information Twitter has obtained independent of its interactions with the
Government (or the grand jury) in this case. See Matter of Subpoena, 947 F.3d at 158 (finding a
non-disclosure order narrowly tailored where it permitted the service provider to “discuss[] the
government’s requests abstractly, as service providers have done by disclosing the number of data
requests and NDOs they receive in public docket civil complaints”). Thus, “[b]y any measure,
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[the NDO] restricts a narrow slice of speech.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 452
(2015). That approach is entirely consistent with cases permitting a protective order in civil
litigation that prohibited disclosure of information obtained in discovery because “an order
prohibiting dissemination of discovered information before trial is not the kind of classic prior
restraint that requires exacting First Amendment scrutiny.” Seattle Times v. Rhinehart, 467 U.S.
20, 33 (1984); see Butterworth v. Smith, 494 U.S. 624, 632 (1990) (extending Rhinehart to
government investigations by striking down a provision that limited a witness from disclosing his
own testimony but not addressing “information which he may have obtained as a result of his
participation in the proceedings”).
The NDO is further narrowly tailored because it does not apply indefinitely but rather is
limited to 180 days. The presence of a “temporal limitation” in a non-disclosure requirement is an
“important” consideration in assessing “the balance of government versus free speech interests.”
John Doe, Inc., 549 F.3d at 877. Courts have upheld as narrowly tailored non-disclosure orders
that lasted up to a year. See Matter of Subpoena, 947 F.3d at 159; E-mail Accounts, 468 F. Supp.
3d at 563. Here, the 180-day order appropriately balances the need for investigative secrecy and
any speech interests.
Rather than dispute these straightforward factors, Twitter posits (Twitter’s Mem. 14–16)
three less restrictive means that it claims would preserve its “[e]ssential First Amendment [r]ights.”
Id. at 14. First, it suggests (id. at 14) notifying “just its user”—that is, the former president. That
suggestion is a fallacy and a non-starter for all the reasons discussed above and in the
Government’s ex parte submission. Second, Twitter speculates (id. at 14–15) that one of the
former president’s “representative[s]” might fit the bill, perhaps even a representative under the
Presidential Records Act (“PRA”), 22 U.S.C. § 2201 et seq. These “alternatives are untenable”
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because they are “impractical,” “would be ineffective in maintaining . . . secrecy,” risk
“undermin[ing] the government’s interest in maintaining the confidentiality of an ongoing
investigation,” and require a court to “assess the trustworthiness of a would-be confidante chosen
by a service provider.” Matter of Subpoena, 947 F.3d at 158–59. In short, this Court should
“‘decline to wade into this swamp’ of unworkable line drawing.” Id. at 159 (quoting Williams-
Yulee, 575 U.S. at 454). 5
Twitter’s final proposal (Twitter’s Mem. 15) that the Government obtain the data in
question from NARA fares no better. As an initial matter, this proposal is moot in light of Twitter’s
representation that it has fully complied with the warrant. But more so, even Twitter acknowledges
that NARA does not possess the full universe of responsive documents required under the Warrant.
See id. at 6 (suggesting that “much”—though not all—“of the information sought in the Warrant
has been produced to NARA”); Sealed Hr’g Tr. (Feb. 7, 2023) at 41–46 (discussing entire
categories of information required by the Warrant that are not in NARA’s possession). Moreover,
Twitter’s purported inability to comply with the Court’s order and fully execute the Warrant calls
into question the credibility of Twitter’s representations concerning what it has produced to
NARA, since it took days after the Court held Twitter in contempt for Twitter to work through
various “challenges and technical issues” and “take the extraordinary efforts” to meet the
Warrant’s requirements. ECF No. 18, Notice of Twitter’s Position on Sanctions, at 2 (filed Feb.
5
Twitter does not expand on why it thinks this approach would be workable. Presumably, Twitter
would want to notify the PRA representative in an effort to permit the former president to litigate
any executive privilege concerns. But the PRA representative would not have standing or authority
to pursue such litigation, absent telling the former president of the Warrant and gaining the former
president’s consent to file suit.
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13, 2023). 6 Finally, Twitter identifies no authority for the proposition that a narrow-tailoring
analysis under Section 2705(b) constrains the Government’s choice of investigative tools.
II. Twitter’s meritless stay motion is moot.
Twitter’s motion to vacate or modify the NDO includes a request to stay execution of the
Warrant, Twitter’s Mem. 15–16—relief that Twitter acknowledges no court has ever granted, see
supra 4. The Court’s granting of the Government’s separately filed Motion to Show Cause and
ordering Twitter to comply by executing the Warrant necessarily mooted that stay request. In any
event, the request lacked merit. The first two steps for obtaining a stay under Nken v. Holder, 556
U.S. 418 (2009), require that Twitter make “a strong showing” that it is “likely to succeed on the
merits” and demonstrate that it “will be irreparably injured absent a stay.” Id. at 434. Twitter
makes no showing, let alone a “strong showing,” that it is likely to succeed on its claim that the
NDO cannot withstand strict scrutiny. Consistent with the weight of recent case law and for the
reasons described above and in the Government’s ex parte submission, Twitter’s challenge to the
NDO fails, which in turns demonstrates that it cannot satisfy the first stay showing of a strong
likelihood of success on the merits. See Google LLC, 443 F. Supp. 3d at 455 (denying service
provider’s motion to stay execution of a search warrant after concluding that the non-disclosure
order satisfied strict scrutiny). Twitter suggests that its loss of First Amendment “freedoms”
necessarily amounts to irreparable injury, but this case is a far cry from the case that Twitter cites
6
The Government does not take a position on whether the Account information held at NARA
would necessarily qualify as “presidential records” as that term is defined in 44 U.S.C. § 2201(2),
in part because it is unknown the extent to which the former president may have used any private
settings in his Twitter account to create “personal records,” see § 2201(3), which, while outside
the ambit of the PRA, may nonetheless be relevant and probative evidence in an investigation. It
is unclear whether the Government could obtain any previously undisclosed presidential records
without triggering the PRA regulation and related executive order that requires notification to the
former president. See 36 C.F.R. § 1270.44(a)(1) and (c); Executive Order 13489.
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for that proposition—Elrod v. Burns, 427 U.S. 347 (1976), which involved claims by civil servants
that they were discharged or threatened with discharge on account of their political affiliation or
nonaffiliation, see id. at 349—or other similar situations where more than a “narrow slice of
speech” is at issue. See Williams-Yulee, 575 U.S. at 452. 7
CONCLUSION
For the foregoing reasons, the Court should deny Twitter’s motion to vacate or modify the
non-disclosure order.
JACK SMITH
Special Counsel

James I. Pearce (N.C. Bar No. 44691)
Assistant Special Counsels
7
Twitter’s invocation (Twitter’s Mem. 16) of Freedman v. State of Md., 380 U.S. 51 (1965), is
misplaced. The “procedural safeguards” that Freedman requires, 380 U.S. at 58, and on which
Twitter relies (Twitter’s Mem. 7, 16), apply to cases involving “government censorship and
licensing schemes,” not to a law that prohibits disclosure of government-requested information
sought “to assist in an investigation.” In re National Security Letter, 33 F.4th at 1077.
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Exhibit A
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TWITTER’S REPLY IN SUPPORT OF ITS

MOTION TO VACATE OR MODIFY NON-DISCLOSURE ORDER
ISSUED PURSUANT TO 18 U.S.C. § 2705(b)
AND STAY TWITTER’S COMPLIANCE WITH SEARCH WARRANT
In its opposition, the government does not seriously contest that Twitter has a First
Amendment interest in informing its user of the Warrant, nor that the Non-Disclosure Order
operates as a prior restraint on such speech and is therefore subject to strict scrutiny. Instead, it
asserts that disclosure of the Warrant in this case would undermine “the integrity and secrecy of
an ongoing investigation.” Opp. 8. But those vague and generalized interests are insufficient to
justify the prior restraint in this case. Both the statute and the First Amendment require the
government to establish that silencing Twitter is necessary to address the narrower and more
concrete objectives that the government identified when it first obtained the order: preventing
“destruction of or tampering with evidence,” “intimidation of potential witnesses,” and “serious
jeopardy to the investigation.” 1
1
In its opposition brief, the government abandons the first rationale (flight from prosecution) on
which it relied, conceding it was included in error. Opp. 2 n.1. The government states that the
errant language “can be found at the bottom of page two of the NDO,” but it appears that the
government instead means to refer to language found at the bottom of page one.
1
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The government has not met and cannot meet that burden. The government’s opposition
does not even attempt to account for the unique and unparalleled level of publicity surrounding
this investigation. It is undisputed that the public knows the government is seizing electronic
communications in this (publicly-announced) criminal investigation, including from people who
communicated directly with the Twitter user at issue in the Warrant. When an investigation’s
existence and details about the specific investigative technique at issue in a warrant are widely
known, as here, secrecy alone cannot justify a gag order covering a warrant that any reasonable
observer would expect the Special Counsel to obtain. Nor can the government claim to be
concerned that the Twitter user might destroy the evidence sought, given that the government has
now obtained that evidence from Twitter pursuant to the Warrant. And it cannot be credibly said
that disclosing the Warrant would provide a particular reason for witness intimidation in view of
all the prior reporting that this type of warrant has already been used to seize this type of
communications.
Even if the government could establish that the Non-Disclosure Order furthered a
compelling (and statutorily identified) interest, it still could not demonstrate that it is the least
restrictive means of advancing that interest. The government cursorily dismisses Twitter’s
proposed alternatives as “untenable” or “impractical,” but the Constitution demands more than
that. The government may not just assert that proposed alternatives “do not work,” or that its
“chosen route is easier”—it “must demonstrate that alternative measures … would fail to achieve
the government’s interests.” McCullen v. Coakley, 573 U.S. 464, 494-495 (2014) (applying
intermediate scrutiny). The government has not done so here. It could prevent whatever
investigative danger it fears by, for instance, permitting Twitter to disclose only the warrant form
and Attachment A (and the relevant date range) to a representative of Mr. Trump who has
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already been authorized to act on his behalf “in all respects that pertain to the records of [his]
Presidency.” 2 Or it could disclose just the fact of the Warrant, but not its contents or
attachments.
As a result, the government has failed to carry its burden of justifying the Non-Disclosure
Order in this case. The court should accordingly vacate or at least modify that order.
I. The Government’s Asserted Interests Cannot Justify the Non-Disclosure Order
Both the SCA and the Constitution require the government to make specific showings to
justify a non-disclosure order. But the highly public nature of the government’s investigation
and use of this investigative tool means that it cannot make the required showing. Indeed, the
government’s opposition brief makes little effort to do so—instead, it appears to apply a
different—and lesser—legal standard than the one mandated by the statute and the Constitution.
1. The Government Cannot Satisfy the Proper Standard for Obtaining a Section
2705(b) Order
Strict scrutiny requires the government to “specifically identify an ‘actual problem’ in
need of solving,” and explain why the Non-Disclosure Order is “actually necessary to the
solution.” Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 799 (2011). The government cannot
satisfy that burden here for the three statutorily-authorized rationales that remain in the Non-
Disclosure Order.
Destruction or Tampering With Evidence. The government cannot demonstrate a
meaningful risk that the evidence at issue will be destroyed or tampered with, because Twitter
has now produced the evidence from the Target Account that the government requested. If
2
Letter of Donald J. Trump to NARA Archivist David S. Ferriero (Jan. 19, 2021), available at
https://www.archives.gov/files/foia/wh-ltr-to-u.s.-archivist-trump-pra-rep-1.19.2021.pdf
(hereinafter “NARA Designation”).
3
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disclosure of the Warrant ever risked the destruction of the evidence it sought, it cannot do so
now that the evidence is within the government’s control.
Nor is it reasonable to conclude that disclosure of the Warrant could prompt the
destruction of other evidence. As explained in Twitter’s opening brief, the Special Counsel has
made its investigations into Mr. Trump public. Mot. 8-12. These investigations are likely the
most widely known and widely reported on criminal investigations in the Nation. The
Department of Justice has itself confirmed the investigations’ existence and scope, and has
issued scores of subpoenas (now public) encompassing subjects’ telephones, personal
communications, and sensitive testimony (including that of aides who worked directly for the
former President). Mot. at 9-11. As a result, everyone—including Mr. Trump—knows the
following:
• The investigations target Mr. Trump and his associates;
• The investigations focus on, among other things, Mr. Trump’s involvement in and
responsibility for interference with Congress’s certification of the presidential
election on January 6;
• The government has seized electronic communications of Mr. Trump’s associates,

including those who communicated directly with Mr. Trump; and
• The investigations encompass Mr. Trump’s personal communications, including

communications stored electronically.
In short, Mr. Trump is at least constructively aware that the government has done or is
doing what the Warrant does.
Adding the limited information reflected in the Warrant—that the government seeks
information from the Target Account—to that vast body of public knowledge cannot constitute a
reason to believe that anyone will destroy evidence (or, if notice were limited to Mr. Trump, that
he will destroy evidence). If Mr. Trump or a witness were inclined to destroy evidence, they
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already have ample reason to do so in view of the numerous public reports that the government
has taken the specific investigative step at issue here in this very case—seizing electronic
communications. The statute and the Constitution require the government to draw a specific link
between disclosure of this Warrant and that act of destroying evidence—and the government
cannot do so. 3
Indeed, since this court initially issued the Non-Disclosure Order, the rationale for it has
grown weaker, not stronger. In just the past few weeks, the government has taken several highly
publicized investigatory steps 4: the Special Counsel has subpoenaed the former President’s
daughter and advisor Ivanka Trump and her husband and former presidential advisor Jared
Kushner 5; subpoenaed former Vice President Mike Pence 6; subpoenaed Mark Meadows, Mr.
Trump’s last Chief of Staff 7; required two of Mr. Trump’s lawyers to appear before a grand
3
Mr. Trump may be unique in this regard for this investigative step. Because he was announced
as a principal subject of investigation and because the public reporting has focused on
investigative actions directed at him, he may have a unique level of knowledge about
investigative actions regarding him—even relative to other investigations of him that were
conducted with far less public awareness.
4
The news articles Twitter cited its initial motion are attached here as Exhibit A. The articles
cited in this Reply are attached as Exhibit B.
5
Maggie Haberman & Michael S. Schmidt, Jared Kushner and Ivanka Trump Subpoenaed in
Jan. 6 Investigation, N.Y. TIMES (Feb. 22, 2023), available at
https://www.nytimes.com/2023/02/22/us/politics/jared-kushner-ivanka-trump-jan-6.html.
6
Maggie Haberman & Glenn Thrush, Pence Gets Subpoena From Special Counsel in Jan. 6
Investigation, N.Y. TIMES (Feb. 9, 2023), available at
https://www.nytimes.com/2023/02/09/us/politics/pence-subpoena-trump.html.
7
C. Ryan Barber & Sadie Gurman, Mark Meadows, Trump’s Last Chief of Staff, Subpoenaed by
Grand Jury, WALL STREET JOURNAL (Feb. 15, 2023), available at
https://www.wsj.com/articles/mark-meadows-trumps-last-chief-of-staff-subpoenaed-by-grand-
jury-8c7ad44e?mod=Searchresults_pos2&page=1.
5
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jury 8; attempted to force one of those lawyers to provide “answers about direct conversations” he
had with Mr. Trump 9; “moved aggressively with subpoenas to associates of Mr. Trump and
requests for prompt productions of documents” 10; and subpoenaed state legislative leaders to
acquire their communications with Mr. Trump and other Trump campaign officials. 11 If there
was any public uncertainty before (and there was not), there is now no hiding that the Special
Counsel is investigating Mr. Trump and his associates, and that his investigative steps include
obtaining the contents of direct communications between Mr. Trump and his associates. The
disclosure of the Warrant does not meaningfully add anything to that public knowledge. 12
8
C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of
Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023), available at
https://www.wsj.com/articles/trump-lawyers-appeared-before-grand-jury-as-part-of-classified-
documents-probe-3d1c8040?mod=Searchresults_pos5&page=1.
9
Katelyn Polantz et al., Special counsel is locked in at least 8 secret court battles in Trump
investigations, CNN (Feb. 16, 2023), available at
https://www.cnn.com/2023/02/16/politics/secret-grand-jury-special-counsel-trump/index.html.
10
C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of
Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023).
11
Jim Small, GOP Arizona legislators, including leaders of the house and senate, subpoenaed to
testify in special counsel probe of Trump, Arizona Mirror (Feb. 17, 2023), available at
https://www.azmirror.com/blog/gop-arizona-legislators-including-leaders-of-the-house-and-
senate-subpoenaed-to-testify-in-special-counsel-probe-of-trump/.
12
Significant media coverage of an investigation may have different legal consequences in the
context of grand jury sealing than in the context of Section 2705(b) non-disclosure orders. See
In re Application of the N.Y. Times Co. & Charlie Savage, 2023 WL 2185826, at *10 (D.D.C.
Feb. 23, 2023) (“[M]aterials from grand jury matters of intense public interest … may have to
remain entirely sealed in the name of grand jury secrecy.”). Rule 6(e) asks only whether sealing
is required “to prevent the unauthorized disclosure of a matter occurring before a grand jury.”
Fed. R. Crim. P. 6(e). Section 2705(b), by contrast, requires the government to make a showing
that specific adverse consequences may flow from disclosure. Even if media publicity arguably
lowers the bar for establishing a potential breach of grand jury secrecy (as relevant for Rule
6(e)), it can sometimes raise the bar for proving that a particular breach of secrecy will lead to
specific adverse consequences for an investigation—as Twitter’s motion and this reply have
explained.
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Intimidation of Potential Witnesses. Nor is it reasonable to conclude that disclosure of
this Warrant in particular would spur witness intimidation in view of that which is already well
known about this investigation’s seizure of electronic communications. Just as with the
destruction of evidence factor, any would-be intimidators, including Mr. Trump himself, have
already had more than sufficient reason and opportunity to try to intimidate witnesses in this
investigation. Learning of this Warrant would add nothing meaningful to the mix of information
already available. And unlike the dozens of subpoenas that are already public, the Warrant here
does not involve a witness at all—only data stored on Twitter’s servers. The types of revelations
that would be logically tied to potential witness intimidation—the disclosure of an
investigation’s existence or the name of a potential witness—are not implicated by the limited
disclosure of this Warrant. And indeed, those categories of information have already been
revealed, dozens of times over.
Serious Jeopardy to an Investigation. For similar reasons, the government cannot
show that disclosure would “seriously jeopardiz[e]” its already highly public investigation. 18
U.S.C. § 2705(b)(5). Importantly, this factor cannot be satisfied merely by showing some vague
impact on the “integrity” of the government’s investigation. Contra Opp. 8. Only “serious[]
jeopard[y]” to the investigation can justify restricting Twitter’s First Amendment rights.
In a typical case, the government might demonstrate a risk of “serious[] jeopardiz[ation]”
by observing that disclosure would “alert the targets to [an] ongoing investigation” of which they
would otherwise be unaware. In re Grand Jury Subpoena Subpoena to Facebook, 2016 WL
9274455, at *2 (E.D.N.Y. May 12, 2016); see also, e.g., In the Matter of the Application of the
U.S. for a Warrant Authorizing, [Redacted], 2015 WL 667923 (D. Kan. Feb. 13, 2015), at *1
(“[T]he government contends such [serious] jeopardy ‘would result from notifying a major target
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of these investigations that he is under current scrutiny by law enforcement personnel.’”). But
that cannot justify the government’s approach here—where the Attorney General of the United
States held a nationally televised press conference and confirmed the investigation, its scope, and
the identity of the target. Once again, this Warrant adds nothing to the public knowledge of the
investigation’s existence or targets. See In re Grand Jury Subpoena Issued to Twitter, Inc., 2017
WL 9287146, at *6 (N.D. Tex. Sept. 22, 2017) (vacating a non-disclosure order after indictment
was unsealed, because the resulting public knowledge meant that “ongoing restriction on
Twitter’s communication with its subscriber[]” did “little to conceal that [its subscriber]—and,
thus, his associates—are under investigation … .”), report and recommendation adopted, No.
3:17-MC-40-M-BN, 2017 WL 9287147 (N.D. Tex. Oct. 19, 2017).
Past Conduct. That Mr. Trump may have previously engaged in obstructive behavior
towards known cooperating witnesses (or potentially cooperating witnesses) with respect to other
investigations or inquiries does not suffice. Twitter does not question that such past behavior
would justify concern that Mr. Trump might attempt to obstruct this investigation. But that alone
cannot justify restricting Twitter from speaking because the Warrant reveals little that is not
already public and provides no new reason for Mr. Trump to engage in obstructive activity. To
silence Twitter the government must show that “there is reason to believe that notification of the
existence of the” Warrant here—as opposed to all of the government’s other public efforts—
would prompt obstruction. 18 U.S.C. § 2705(b). And for the reasons already described, the
particular sorts of obstruction that could actually endanger the government’s investigation—like
the destruction of evidence or intimidation of witnesses—are not realistically likely to follow
from the Warrant’s disclosure.
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2. The Government’s Counter-Arguments Cannot Justify The Non-Disclosure Order
In its opposition, the government offers two counter-arguments for why disclosure of the
Warrant is nonetheless likely to damage its investigations. First, it argues that much of the
public knowledge of its investigations stems from media accounts that “attempt to fill in gaps
based on discrete pieces of information or courthouse sightings of witnesses.” Opp. 9. But a
significant portion of the public information about the investigations has, in fact, come from the
government itself. As explained in Twitter’s opening brief, the Department of Justice confirmed
the criminal investigations into Mr. Trump in a televised press conference. Mot. 9. It has issued
scores of subpoenas to extremely high-profile witnesses who are close to the target of its
investigations. And the government “has supported the partial unsealing of two judicial
decisions resolving filter team motions” that confirmed it has seized and is reviewing the email
accounts of Mr. Trump’s associates as part of the investigations. In re Application of the N.Y.
Times Co. & Charlie Savage, 2023 WL 2185826, at *15 (D.D.C. Feb. 23, 2023) (citing In re
Search of Info. Associated with Two Accounts Stored at Premises Controlled by Google LLC,
2022 U.S. Dist. LEXIS 237972 (D.D.C. Dec. 15, 2022)). In any event, it is largely irrelevant
whether the public’s existing knowledge of the investigations arises from deliberate disclosures
by the Special Counsel, or instead from investigative reporting. Either way, the public—
including Mr. Trump—has become aware of the investigation’s existence, scope, and methods
(including the Warrant’s method and the Warrant’s target type of material). Regardless of how
that came about, it means that disclosure of the Warrant is unlikely to substantially alter the
balance of public knowledge about the investigations.
The government’s second argument, that the public’s knowledge is more general than
what the Warrant reveals, fares no better. In particular, the government argues that while “the
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investigation’s existence is no longer secret,” the “specific ongoing investigative steps the
Government is pursuing” are. Opp. 9. But as explained above, the public knows of far more
than just “the investigations’ existence.” The public knows that the investigations target Mr.
Trump and a wide range of his associates; that the investigations focus on, among other things,
Mr. Trump’s involvement in the events of January 6; that the government has seized electronic
communications of Mr. Trump’s associates, including those who communicated directly with
Mr. Trump; and that the investigations encompass Mr. Trump’s personal communications,
including those stored electronically. The government cannot point to any piece of information
in the Warrant that would meaningfully reveal something beyond that broad set of already-public
facts.
3. The Government Misstates the Legal Standard for Obtaining a Section 2705(b)
Order
The SCA provides that a court may issue a non-disclosure order under 18 U.S.C.
§ 2705(b) only if “there is reason to believe that notification of the existence of the warrant …
will result in” one of several specific adverse outcomes. Those include the grounds on which the
non-disclosure order in this case now relies: “destruction of or tampering with evidence,”
“intimidation of potential witnesses,” and “otherwise seriously jeopardizing an investigation.”
18 U.S.C. § 2705(b)(3)-(5). The government’s opposition, however, largely ignores these
statutory requirements. Instead, the government suggests an entirely separate rationale for non-
disclosure: “preserving the integrity and secrecy of an ongoing investigation.” Opp. 8.
Contrary to what the government suggests, it cannot justify the non-disclosure order
simply because there is a related grand jury proceeding. See Opp. 8. Grand jury secrecy rules do
not speak to disclosure of a warrant, Fed. R. Crim. P. 6(e)(2)(B), and the fact of a search warrant
10
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does not in and of itself reveal “a matter occurring before the grand jury.” 13 See In re
Application of the N.Y. Times Co. & Charlie Savage, 2023 WL 2185826, at *4 n.6 (“Search
warrants … are not subject to Rule 6(e), even when the warrant is issued to obtain evidence as
part of an ongoing grand jury investigation[.]”). Indeed, a warrant, unlike a grand jury subpoena,
can be issued in the absence of a grand jury, such as post-indictment. And given the level of
public knowledge concerning the Special Counsel’s investigations (discussed above), the
Warrant in this case has far more in common with a post-indictment warrant, where maintaining
secrecy is not an issue, than a pre-indictment grand jury subpoena issued in total secrecy.
Moreover, the existence of a grand jury investigation does not cloak every related government
action in grand jury secrecy. See Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 73 (D.C. Cir.
2018) (“Rule 6(e) does not … draw a veil of secrecy over all matters occurring in the world that
happen to be investigated by a grand jury.” (quotation marks and alteration omitted)). Even the
governing federal rule in the grand jury context begins with a presumption against secrecy, see
Fed. R. Crim. P. 6(e)(2)(A) (“No obligation of secrecy may be imposed on any person except in
accordance with [this rule].”), and courts that have upheld non-disclosure orders in the grand jury
context have limited those orders to “exceptional cases,” see, e.g., In re Grand Jury Proceedings,
814 F.2d 61, 69 (1st Cir. 1987).
Moreover, the secrecy of a criminal investigation alone does not, “without more, provide
a statutory basis for a nondisclosure order under Section 2705(b).” In re Grand Jury Subpoena
Issued to Twitter, Inc., 2017 WL 9287146, at *6. Neither “secrecy” nor “integrity,” as an end
unto itself, appear in the statute. Rather, the law spells out that a desire for secrecy justifies non-
13
Were it otherwise, a non-disclosure order would be required for every search warrant to
protect grand jury secrecy.
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disclosure only where the government establishes a specific, factual link to the particular harms
Congress has identified. “[S]ecrecy” and “integrity” could be invoked to justify any speech
restriction about any investigative step. But both the First Amendment and the statute preclude
the government from asserting an interest that is “too broad … to serve as an effective constraint
on law enforcement decisions that may infringe First Amendment rights.” Doe v. Harris, 772
F.3d 563, 580 (9th Cir. 2014).
As explained above (and in Twitter’s opening motion), the government cannot satisfy the
specific and concrete interests enumerated in Section 2705(b)(3)-(5). To the extent that the
government’s ex parte filing relies on some other interest, it should be required to disclose that
interest to Twitter. That is particularly so in this case, where the government has already
conceded that it committed a substantive error in its initial ex parte filing to obtain the Non-
Disclosure Order. Revealing the nature of the government’s interest—as opposed to the facts
establishing a risk to that interest—is unlikely to disclose anything that could endanger the
government’s investigation. And keeping it secret (if that is what the government has done)
deprives Twitter of a meaningful opportunity to contest the Non-Disclosure Order by explaining
why that interest would not be endangered by limited disclosure. “Ex parte communications
generally are disfavored because they conflict with a fundamental precept of our system of
justice: a fair hearing requires a reasonable opportunity to know the claims of the opposing party
and to meet them.” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995)
(quotation marks omitted). For that reason, particularly where an in camera, ex parte filing is
“dispositive,” the government should at least make “available to both sides … the general
purport of the [ex parte] argument and evidence such that the other side will have an opportunity
to respond to the general tenor of the proposed submission,” and “explain[] why more detail
12
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should not be made available.” Ibrahim v. Dep’t of Homeland Sec., 2012 WL 6652362, at *6
(N.D. Cal. Dec. 20, 2012); see also United States v. Barnwell, 477 F.3d 844, 851 (6th Cir. 2007)
(“If ex parte communications are to be allowed at all, they must continue no further than the
extent to which they are absolutely necessary to protect the state’s compelling interest.”).
If the government is relying on a secret rationale for the Non-Disclosure Order, that also
raises the possibility that it has shifted its rationale since it first sought the order. But because
prior restraints are constitutionally suspect, such a restraint cannot be defended based on “post
hoc rationalizations” or the use of “shifting … criteria,” which too easily enable censors to
“permit[] favorable, and suppress[] unfavorable, expression.” City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 758 (1988). The government was required to make the requisite
showing prior to the Non-Disclosure Order being signed. The Court should not countenance any
post-hoc rationalizations that were not offered at the time the government first sought the Non-
Disclosure Order.
II. The Government Has Not Demonstrated That the NDO is Narrowly Tailored; Nor
Has It Meaningfully Addressed Twitter’s Proposed Less Restrictive Alternatives
A speech restriction is narrowly tailored only “if it targets and eliminates no more than
the exact source of the ‘evil’ it seeks to remedy.” Boardley v. U.S. Dep’t. of Interior, 615 F.3d
508, 519 (D.C. Cir. 2010) (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)). As Twitter
explained in its Motion, there are several ways that the Court could more narrowly tailor the
Non-Disclosure Order to achieve the government’s asserted interests and minimize infringement
on Twitter’s First Amendment rights. Rather than seriously consider these less restrictive
measures, the government dismisses them with two paragraphs of cursory analysis. But the
government may not just assert, as it does here, that the proposed alternatives simply “do not
work.” McCullen, 573 U.S. at 494 (applying intermediate scrutiny). It must instead “show[] that
13
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it seriously undertook to address the problem with less intrusive tools readily available to it,”
“that it considered different methods that other jurisdictions have found effective,” and,
ultimately, “that alternative measures that burden substantially less speech would fail to achieve
the government’s interests.” Id. at 494-495; see also Billups v. City of Charleston, S.C., 961
F.3d 673, 688 (4th Cir. 2020) (“testimony from [government] officials regarding the predicted
ineffectiveness of … suggested alternatives[,] … without more, is not sufficient to satisfy” even
intermediate scrutiny). Because the government fails to meaningfully respond to Twitter’s
proposals for a less restrictive alternative or itself demonstrate that alternative measures are
insufficient, it has not shown that its Non-Disclosure Order is narrowly tailored to achieve its
stated interests.
1. The Government has not Demonstrated an Absence of Less Restrictive Means
First, the Court could partially modify the Non-Disclosure Order to permit Twitter to
notify the user of the Target Account to the existence of the Warrant without disclosing the
contents of Attachment B. The government’s articulation of its interest presupposes that Twitter
would be “[p]roviding the Warrant to the former president” or otherwise providing to him “the
detail supplied in the Warrant.” (Opp. 9.) But the government makes no attempt to tailor its
interest to mere disclosure of the Warrant’s existence, and in fact makes several concessions
suggesting that such a disclosure would not significantly impact its interest: For example, the
government acknowledges that its “investigation’s existence is no longer secret.” (Opp. 9.) Nor
does it contest that the public is aware of the investigation’s scope—in particular, that the
investigation encompasses the sensitive personal communications of Mr. Trump and his
associates. See supra 4-6. Instead, the government warns that “[p]roviding the Warrant to the
former president at this point in the investigation” would “exceed some mere ‘incremental’ step,”
14
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but instead impair its investigation. Opp. 9. Even accepting the government’s argument, no
such impairment would take place absent provision of the Warrant and attachments. Similarly,
to the extent that the risks to the government’s interest arise from the user’s confederates, and not
from the user himself, then disclosure of the Warrant to the user alone would be sufficient.
Alternatively, the Court could permit Twitter to alert one of the former President’s
representatives authorized to assert his privileges in this case—for example, the former
President’s attorney, or the several designated “representatives in all respects that pertain to the
records of my Presidency” on file with the National Archives and Records Administration
(NARA). NARA Designation. As other courts in this District have done in similar cases, the
Court could then order those individuals not to disclose the existence of the Warrant. See, e.g.,
Order, ECF No. 4 at 1, In re Application of USA for 2703(d) Order for Six Email Accounts
Serviced by Google LLC for Investigation of Violation of 18 U.S.C. §§ 641 and 793 [hereinafter
“In re Application re: Six Email Accounts”], SC No. 20-sc-3361 (D.D.C. Mar. 3, 2021)
(modifying gag order to permit disclosure to target’s counsel but to no other entities); Order,
ECF No. 6 at 1, In re Application re: Six Email Accounts (Mar. 8, 2021) (similar); Order, ECF
No. 8 at 1, In re Application re: Six Email Accounts (Mar. 22, 2021) (similar); see also In re
Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 180 (D.D.C. 2004) (permitting attorney
review of sensitive evidence through issuance of a protective order and prohibiting counsel from
“disclos[ing] classified information not provided by [their client] to [their client]”).
The government does not dispute this latter alternative would minimize the infringement
on Twitter’s speech while avoiding the harms set forth in their ex parte submission. (Opp. 12.)
Instead, the government asserts that it would be “untenable” or “impractical” to assess a
representative’s trustworthiness, and that such a representative would lack the ability to vindicate
15
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Mr. Trump’s interests without informing him of the Warrant. (Opp. 11-12.) But the government
nowhere explains why extending the Non-Disclosure Order to cover the representatives—as
other courts in this District have done—would not address any concerns about a representative’s
trustworthiness. See ECF Nos. 4, 6, 8, In re Application re: Six Email Accounts. And courts
frequently assess the trustworthiness and discretion of representatives in many contexts,
including protective orders and conservatorships. See, e.g., In re Guantanamo Detainee Cases,
344 F. Supp. 2d 174. In any event, that disclosing to a representative would be less expedient for
the government than the blanket Non-Disclosure Order imposed on Twitter is not a permissible
reason to dismiss it: “[T]he prime objective of the First Amendment is not efficiency.”
McCullen, 573 U.S. at 495.
Nor is there merit to the government’s unsupported assertion that a designated
representative would not have standing or authority to vindicate the former President’s legal
interests in this case. The NARA grant of authority is sweeping and unconditional, designating
seven identified individuals as “representatives in all respects that pertain to the records of my
presidency.” NARA Designation (emphasis added). The letter essentially grants power of
attorney to the named individuals within the specified domain. Litigation of privileges related to
those records fall within that broad ambit, and a lawfully designated representative asserting a
pertinent privilege is a circumstance in which “federal courts routinely entertain suits which will
result in relief for parties that are not themselves directly bringing suit.” Sprint Commc’ns Co.,
L.P. v. APCC Servs., Inc., 554 U.S. 269, 287-288 (2008) (noting also that “[t]rustees bring suits
to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to
benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates;
executors bring suit to benefit testator estates; and so forth”).
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2. The Non-Disclosure Order is not Narrowly Tailored in Light of Twitter’s

Significant First Amendment Rights at Stake
Instead of meaningfully addressing these less restrictive alternatives, the government
asserts that “any restriction on Twitter is the least restrictive means of advancing governmental
interests.” (Opp. 10.) It then offers two reasons why its non-disclosure order is narrowly
tailored: it is limited in duration to 180 days, and it restricts Twitter from disclosing only the
existence or contents of the Warrant itself. (Opp. 10-11.)
As to the former, the government asserts that the mere presence of a “temporal limitation
… balances the need for investigative secrecy and any speech interests.” (Opp. 11.) But even
the case it cites acknowledges that “a temporal limitation alone may not be enough to satisfy
strict scrutiny.” Matter of Subpoena 2018R00776, 947 F.3d 148, 157 (3d Cir. 2020); Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (noting that “the burden on the Government” of
justifying a prior restraint “is not reduced by [its] temporary nature[.]”). Twitter’s First
Amendment interest is in notifying its user of the Warrant at a time when that information would
be meaningful to the user—here, when the user could assert his potential privilege before it has
been invaded. Though Twitter is not privy to the government’s investigative timeline, 180 days
is likely too late for the user to assert the privilege in a timely manner. As courts routinely
recognize, “[i]t is axiomatic that the timing of speech is often crucial to its impact.” Matter of
Search of Kitty’s E., 905 F.2d 1367, 1371 (10th Cir. 1990) (emphasis added); see also White
House Vigil for ERA Comm. v. Clark, 746 F.2d 1518, 1528 (D.C. Cir. 1984) (protest restriction
upheld because it left “unaffected a multitude of possibilities for meaningful” speech) (emphasis
added); Wood v. Ga., 370 U.S. 375, 392 (1962) (“Consistent suppression of discussion likely to
affect pending investigations would mean that some continuing public grievances could never be
discussed at all, or at least not at the moment when public discussion is most needed.”).
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The government also argues that the Non-Disclosure Order is narrowly tailored because it
impedes only a narrow swath of Twitter’s speech. But that swath goes to the heart of Twitter’s
First Amendment interest in this case: consistent with its terms of service and express
commitment to its users, Twitter has a vital interest in notifying users, who have entrusted
Twitter with their private data, when the government compels Twitter to produce that data.
To this end, contrary to the government’s representation that Twitter has uniquely
brought this challenge to protect the former President, Twitter reviews non-disclosure orders
issued to it and frequently challenges those appearing to contain procedural or substantive
deficiencies. 14 In its February 8, 2023 letter to this Court, Twitter identified 32 such instances
dating back to 2011. While Twitter does not challenge each and every one of the thousands of
non-disclosure orders it receives on a yearly basis, where the statutory factors do not appear to be
met, or where a non-disclosure order appears to be otherwise invalid, Twitter has pursued its
First Amendment interests and challenged non-disclosure orders accompanying legal process
requests for user data in cases like this one. 15
Here, the Non-Disclosure Order appeared to be plainly invalid for two reasons: certain of
the justifications in the order appeared facially to not apply, and (as outlined above) the
14
Twitter’s non-disclosure order challenges are often successful, and the Court should not
discount—as the government does—situations where Twitter meets and confers with law
enforcement and they withdraw or modify an order without court action. These pre-filing
conferences are appropriate actions to conserve judicial resources, and, as noted in its filing,
Twitter’s outreach to law enforcement challenging non-disclosure orders frequently results in
law enforcement withdrawing or modifying the non-disclosure order.
15
Twitter challenges facially invalid non-disclosure orders regardless of the legal process to
which they are attached. It is of no matter that, as the government points out, the invalid orders
have typically attached to subpoenas or national security letters, rather than warrants. The point
is that Twitter has exercised its First Amendment right to contest non-disclosure orders where
they have appeared to be improper on their face.
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underlying investigative action all but matched other actions widely known to the public in a
very public criminal case. It was also clear that Twitter’s exercise of its First Amendment rights
was particularly important in this case because the targeted account contained communications
written by the President himself that were potentially privileged.
As submitted to Twitter, the Non-Disclosure Order stated that the former President was
likely to flee from prosecution if the Warrant were disclosed. (Doc. 3 at 1.) The Court
acknowledged that this justification did not apply. (Sealed Hr’g Tr. (Feb. 7, 2023) at 48.) And
indeed, the Government now admits that this finding—one of the facial deficiencies identified by
Twitter in its Motion—was, in fact, an error. Opp. 2 n.1 (acknowledging that the templated
language about flight applied to another statute and was “erroneously included” in the Non-
Disclosure Order).
Additionally, there is reason to believe that Twitter’s user, the former President, may
have a claim of privilege that presents unique issues not previously addressed by any court in a
public decision. As an initial matter, public reports indicate that during his presidency, Mr.
Trump did not use email, text, or any other form of electronic communication besides Twitter. 16
The former President’s private Twitter communications appear to be the only such electronic
communications written by the former President himself, and the government seized those
16
Jonathan Swan & Maggie Haberman, OMG. Trump Has Started Texting., N.Y. TIMES (Jan.
25, 2023), available at https://www.nytimes.com/2023/01/25/us/politics/trump-texting.html;
Alex Leary, Trump Copes With Facebook, Twitter Ban By Relying On Email, Media Interviews,
THE WALL STREET JOURNAL (May 5, 2021), available at
https://www.wsj.com/articles/trump-copes-with-facebook-twitter-ban-by-relying-on-email-
media-interviews-11620226189.
For instance, the “message” from former President Trump to General Michael Flynn that he
“stay strong” (cited by the court in the hearing on February 7, 2023) was passed in person by KT
McFarland—not by an electronic communication written by former President Trump to Gen.
Flynn. Sealed Hr’g Tr. (Feb. 7, 2023) at 49 (referencing Mueller Report, Vol. II, p44, n.267).
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private written communications from a third-party provider without some notice to him. No
court has ever addressed the application of executive privilege in that set of circumstances, and
the plain text of Section 2703, Federal Rule of Criminal Procedure 41, and the Presidential
Records Act did not contemplate this scenario. Further, if the government has not yet reviewed
the communications it seized, there remains for the real parties in interest the issue of whether
the privilege may still be asserted at the outset. 17
Finally, there remains the separate issue of how the government might make derivative
use of those communications outside the Executive Branch, which raises a distinct and
significant basis for the former President to claim privilege. The Court and government both
suggest that there is no executive-privilege issue here because the materials have been seized by
the Executive Branch. Gov. MTSC Reply 6-7 (citing Nixon, 418 U.S. at 708); Sealed Hr’g Tr.
(Feb. 7, 2023) at 51-52. But that does not account for possible derivative uses outside of the
Executive Branch, such as the incorporation of privileged information into warrant affidavits,
witness questioning, and—as the government suggests throughout its brief—disclosure to a
grand jury. Disclosure of the privileged materials in these contexts would raise precisely the
17
As Twitter previously explained, the executive privilege at issue here is likely injured at the
time communications are viewed by another party. See In re Sealed Case, 121 F.3d 729, 744
(D.C. Cir. 1997) (citing Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 449 (1977). In other
privilege contexts, courts have permitted the return of potentially privileged matter even after the
materials were seized. Klitzman Klitzman & Gallagher v. Krut, 744 F.2d 955, 962 (3d Cir. 1984)
(granting defendant’s motion to return attorney-client privileged materials seized during
execution of search warrant); see also In re Search Warrant Issued June 13, 2019, 942 F.3d 159,
183-184 (4th Cir. 2019) (reversing district court’s denial of injunction on federal agents
reviewing seized attorney-client privileged materials obtained through execution of search
warrant).
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Separation-of-Powers issues that the government claims are not triggered when the material stays
within the Executive Branch. 18
In short, while Twitter may not be able to assert the former President’s potential
privilege—and takes no position here on whether it applies—the issues in play make Twitter’s
exercise of its First Amendment rights particularly important in this case. 19
III. Twitter’s Stay Motion is Not Moot
Twitter’s Motion included a request that the Court stay execution of the Warrant until
litigation on the Non-Disclosure Order was resolved. Mot. 16. The government argues that the
Court’s order that Twitter comply with the Warrant “necessarily mooted that stay request.” Opp.
13.
This is incorrect for two reasons. First, the Court’s compliance order ruled on, and
rejected, Twitter’s stay request. The request has thus been denied, not mooted. Second, even if
the Court had not done so, the request would not be moot because it is “‘capable of repetition,
yet evading review.’” People for the Ethical Treatment of Animals, Inc. v. United States Fish &
Wildlife Serv., et al, 59 F. Supp. 3d 91, 97 (D.D.C. 2014). A challenged action is not moot when
it is “‘typically … in its duration too short to be fully litigated prior to its cessation or
expiration,’” and there is “‘a reasonable expectation that the same complaining party would be
18
Even if the government’s possible use of a filter team might temporarily isolate privileged
materials, the former President retains an interest in actually asserting privilege such that his
private Presidential communications are not being protected by the mere exercise of a
prosecutor’s discretion.
19
The government states that “[a] Twitter user’s potential ability to challenge the legal process at
issue—here, the Warrant—is entirely distinct from the First Amendment concerns that Twitter
claims it seeks to further through its own challenge to the NDO.” Opp. 9-10. This concession—
that Twitter’s First Amendment rights do not rise or fall with the success or failure of the user’s
claims—underscores the point that Twitter’s constitutional interest is in disclosing the privacy
breach to its user, not in litigating the user’s claims.
21
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subjected to the same action again.’” Id.. That is the case here, where litigation over this Non-
Disclosure Order spanned less than one month, and Twitter expects to be subject to non-
disclosure orders that it will challenge in the future.
On the merits of Twitter’s stay request, Twitter has made a “a strong showing” that it is
“likely to succeed on the merits” and “will be irreparably injured absent a stay.” Nken v. Holder,
556 U.S. 418, 434 (2009). Twitter has demonstrated that the government’s Non-Disclosure
Order cannot withstand strict scrutiny. See supra 3-21. And it has demonstrated
“unquestionabl[e]” irreparable injury through “[t]he loss of First Amendment freedoms, for even
minimal periods of time.” Elrod v. Burns, 427 U.S. 347, 373-374 (1976).
IV. CONCLUSION
The Non-Disclosure Order issued pursuant to 18 U.S.C. § 2705(b) is a blanket prohibition
prohibiting Twitter from notifying anyone about the Warrant or Non-Disclosure Order, and cannot
be justified by a compelling governmental interest. Accordingly, the Non-Disclosure Order
impermissibly burdens Twitter’s First Amendment rights and should be vacated or modified to
allow Twitter to notify its user of the government’s demand. In addition, this Court should stay
Twitter’s compliance with the Warrant until resolution of these constitutional issues.
22
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EXHIBIT B
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2/24/23, 12:51 PM GOP Arizona legislators, including leaders of the House and Senate, subpoenaed to testify in special counsel probe of Trump
CRIMINAL JUSTICE & POLICING ELECTION 2020 ELECTIONS LAW & GOVERNMENT
A TO Z
GOP Arizona legislators, including leaders of

the House and Senate, subpoenaed to testify in
special counsel probe of Trump
BY: JIM SMALL - FEBRUARY 17, 2023 7:15 AM
     
 House Speaker Ben Toma, Senate President Warren Petersen and Sen. Sonny Borrelli all received federal
grand jury subpoenas from the U.S. Department of Justice’s special counsel investigation of Donald Trump’s
efforts to overturn his 2020 election loss. Photos by Gage Skidmore | Flickr/CC BY-SA 2.0
At least three Arizona Republican state legislators have been subpoenaed by

the U.S. Justice Department’s special counsel, Jack Smith, as part of the
criminal investigation into former President Donald Trump and his efforts to
reverse his 2020 election loss.
The federal grand jury subpoenas were issued to Senate President Warren
Petersen, Sen. Sonny Borrelli and House Speaker Ben Toma. And at least one
https://www.azmirror.com/blog/gop-arizona-legislators-including-leaders-of-the-house-and-senate-subpoenaed-to-testify-in-special-counsel-probe-of-tr… 1/5
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former state senator, Michelle Ugenti-Rita, who led the Senate’s Election
Committee in 2021, received a subpoena. All four have been ordered to
produce records and travel to Washington, D.C., to testify.
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The Arizona Mirror obtained a copy of one of the subpoenas on the condition
that it would not be published. In addition to the command to testify before
the grand jury, the office of the special counsel is demanding any documents
already provided to the congressional panel that investigated the Jan. 6 U.S.
Capitol riot and any documents given to any other state or federal inquiry
related to the 2020 presidential election.
The subpoena also seeks all communications with Trump or his campaign. It
also specifies 18 different campaign employees, attorneys and surrogates:
Kenneth Chesebro, Justin Clark, Joe DiGenova, John Eastman, Jenna Ellis,
Boris Epshteyn, Rudy Giuliani, Bernard Kerik, Bruce Marks, Cleta Mitchell,
Matthew Morgan, Kurt Olsen, William Olson, Sidney Powell, Bill Stepien,
Victoria Toensing, James Troupis and L. Lin Wood.
The state Senate and House of Representatives both confirmed the existence
of the subpoenas for the three sitting lawmakers, but refused to release them
under the state’s public records law or to discuss if other lawmakers were also
subpoenaed. Spokespeople and legislative attorneys also refused to answer
questions about the subpoenas.
“The Special Counsel’s Office has informed us that public release of its
subpoenas could impede its investigation and interfere with federal law
enforcement,” Pete Galvan, an associate rules attorney in the Senate, wrote in
an email. “In light of the position of the Special Counsel’s office, the Senate
won’t release the materials at this time but may revisit the issue in the future
as circumstances change.”
A House attorney also initially cited a request from the Special Counsel’s
Office to keep the records secret as justification. Upon further questioning,
both Justin Riches, the House’s public records counsel, and Galvan said the
legislative bodies were under no obligation to release the subpoenas because
of case law and administrative rules allowing records to be shielded if doing so
is “in the best interests of the state.”
Ugenti-Rita did not respond to questions about the subpoena.
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Borrelli, Petersen, Toma and Ugenti-Rita are not the first Arizona officials to
be subpoenaed by the Justice Department in connection to Trump’s effort to
convince GOP officials in battleground states he lost to overturn the election
results in a bid to retain power. In November, officials in Maricopa County
were among the first to receive subpoenas from Smith’s office.
And before Smith was appointed late last year, the FBI subpoenaed at least
two Republican state senators — then-President Karen Fann and Kelly
Townsend — as part of its investigation into Trump’s pressure campaign to
overturn the 2020 election.
Those earlier subpoenas to Maricopa County and the former senators sought
communication records with 19 different Trump campaign members,
attorneys or surrogates, including Rudy Giuliani, Sidney Powell and L. Lin
Wood.
Prior to that, the Department of Justice had subpoenaed Arizonans who

signed a document that would have sent fake electors to Congress backing
Trump. Among them was Kelli Ward, then the chair of the Arizona
Republican Party.
Smith’s probe appears to be intensifying and moving aggressively. This

month, he issued a subpoena to former Vice President Mike Pence, and some
sources have reportedly been called to testify to the grand jury multiple times.
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JIM SMALL  
Jim Small is a native Arizonan and has covered state government, policy and politics
since 2004, with a focus on investigative and in-depth policy reporting, first as a
reporter for the Arizona Capitol Times, then as editor of the paper and its prestigious
sister publications. He has also served as the editor and executive director of the
Arizona Center for Investigative Reporting.
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full list a 'laboratory'…
BY KIRA LERNER BY JEN FIFIELD/VOTEBEAT
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I N S I G H T F U L . I N V E S T I GAT I V E . I N D E P E N D E N T.
DEMOCRACY TOOLKIT 
Amplifying the voices of Arizonans whose stories are unheard; shining a light on the
relationships between people, power and policy; and holding public officials to account.
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Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or
to shorten, provide proper attribution and link to our web site.
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   
© Arizona Mirror, 2023
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2/24/23, 12:50 PM Jared Kushner and Ivanka Trump Subpoenaed in Jan. 6 Investigation - The New York Times
https://www.nytimes.com/2023/02/22/us/politics/jared-kushner-ivanka-trump-jan-6.html
Jared Kushner and Ivanka Trump Subpoenaed in Jan. 6 Investigation

The special counsel overseeing the inquiry into Donald Trump’s efforts to retain power after the 2020 election wants the former president’s
daughter and son-in-law to testify to a grand jury.
By Maggie Haberman and Michael S. Schmidt

Feb. 22, 2023 3 MI N R EAD
Former President Donald J. Trump’s daughter Ivanka and his son-in-law, Jared Kushner, have been subpoenaed by the special counsel to
testify before a federal grand jury about Mr. Trump’s efforts to stay in power after he lost the 2020 election and his role in a pro-Trump
mob’s attack on the Capitol on Jan. 6, 2021, according to two people briefed on the matter.
The decision by the special counsel, Jack Smith, to subpoena Ms. Trump and Mr. Kushner underscores how deeply into Mr. Trump’s inner
circle Mr. Smith is reaching, and is the latest sign that no potential high-level witness is off limits.
The disclosure about the subpoena comes two weeks after it was revealed that Mr. Smith had subpoenaed former Vice President Mike
Pence to testify before the grand jury. Mr. Pence plans to fight the subpoena, invoking his role as the president of the Senate to argue that
it violates the “speech or debate” clause of the Constitution.
It is unclear whether Mr. Trump will seek to block Ms. Trump and Mr. Kushner from testifying on the grounds of executive privilege, as he
has tried with some other witnesses. Both of them served as White House officials in the Trump administration. Mr. Trump declined to try
to stop them from testifying before the House special committee that investigated the Jan. 6 attack and what led to it.
An aide to Ms. Trump and Mr. Kushner did not respond to a request for comment. Josh Stueve, a spokesman for Mr. Smith, declined to
comment. Aides to Mr. Trump did not respond to a request for comment.
Ms. Trump was in the Oval Office on Jan. 6 as her father placed a late-morning call to Mr. Pence to pressure him to block or delay
congressional certification of the Electoral College results documenting Joseph R. Biden Jr.’s victory. As president of the Senate, Mr. Pence,
who rejected Mr. Trump’s demands, was to serve in a ceremonial role overseeing the process that day.
Ms. Trump also accompanied her father to the rally of his supporters at the Ellipse near the White House. Hundreds of his supporters
moved from there to the Capitol, where they attacked the building, some chanting, “Hang Mike Pence!” for his refusal to do what Mr.
Trump wished.
Mr. Kushner returned from the Middle East that day, ultimately going to the White House after the pro-Trump mob had been rioting for
hours. Both he and his wife were involved in efforts to get Mr. Trump to tell the rioters to go home, and then to commit to a peaceful
transfer of power to Mr. Biden.
Both testified before the Jan. 6 House select committee, appearing for videotaped interviews in which both provided memories about the
day. The committee, in turn, repeatedly played clips of their testimony at some of its public hearings.
One clip that got considerable attention showed Ms. Trump making clear that she accepted Attorney General William P. Barr’s declaration
that there was no evidence of widespread fraud in the election, despite Mr. Trump’s repeated claims otherwise.
Mr. Trump was infuriated by the clips and what was said in them, according to people in contact with him.
Since then, Mr. Kushner and Ms. Trump, who relocated with their three children to Florida after they left the White House, have
maintained family contact with the former president. But while Mr. Kushner appeared at Mr. Trump’s campaign kickoff in November, Ms.
Trump declined to and put out a statement saying she would not be involved in her father’s campaign this time.
Both were intimately involved in his 2016 race before going to work at the White House.
In December, Mr. Trump posted on his social media site, Truth Social, that he did not want them to be involved in his third campaign.
“Contrary to Fake News reporting, I never asked Jared or Ivanka to be part of the 2024 campaign for president and, in fact, specifically
asked them not to do it,” Mr. Trump wrote, going on to say the campaign would be “too mean and nasty.”
“There has never been anything like this ‘ride’ before, and they should not be further subjected to it,” he added.
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2/24/23, 11:17 AM Mark Meadows, Trump’s Last Chief of Staff, Subpoenaed by Grand Jury - WSJ
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https://www.wsj.com/articles/mark-meadows-trumps-last-chief-of-staff-subpoenaed-by-grand-jury-8c7ad44e
POLITICS
Mark Meadows, Trump’s Last Chief of Staff,

Subpoenaed by Grand Jury
Special counsel Jack Smith seeks former top aide’s testimony in probe of efforts to
reverse 2020 presidential election
The subpoena for Mark Meadows could set the stage for further court battles.
PHOTO: YURI GRIPAS/REUTERS
By C. Ryan Barber Follow and Sadie Gurman Follow

Updated Feb. 15, 2023 9:47 pm ET
WASHINGTON—Former White House chief of staff Mark Meadows has been subpoenaed by
the special counsel investigating former President Donald Trump’s efforts to overturn his loss
in the 2020 election, according to a person familiar with the matter.
Mr. Meadows received the subpoena in late January, the person said, as special counsel Jack
Smith’s investigation escalated his probe into steps Mr. Trump and his allies took to keep him
in office. As Mr. Trump’s final White House chief of staff, Mr. Meadows would be among the
closest advisers of the former president to be summoned before the grand jury.
The demand for his testimony predated a separate subpoena issued to former Vice President
Mike Pence as part of the investigation. Two top aides to Mr. Pence—his former chief of staff
https://www.wsj.com/articles/mark-meadows-trumps-last-chief-of-staff-subpoenaed-by-grand-jury-8c7ad44e?mod=Searchresults_pos2&page=1 1/4
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Marc Short and counsel Greg Jacob—are among the former Trump administration officials
who have already appeared before the grand jury.
The subpoena for Mr. Meadows could set the stage for further court battles between
prosecutors and Mr. Trump, whose lawyers have cited executive privilege in attempts to block
or delay the testimony of top aides in investigations examining the former president. Mr.
Pence plans to resist his subpoena by arguing that, as vice president, he served also as
president of the Senate and is covered by the Constitution’s Speech or Debate clause, which
protects members of Congress from being questioned in court about legislative acts.
Former President Donald Trump’s chief of staff Mark Meadows has been at the center of other investigations into
efforts to overturn the 2020 presidential election.
PHOTO: MANDEL NGAN/AGENCE FRANCE-PRESSE/GETTY IMAGES
A lawyer for Mr. Meadows, George Terwilliger, and a Justice Department spokesman declined
to comment. CNN earlier reported that Mr. Meadows has been subpoenaed.
Attorney General Merrick Garland appointed Mr. Smith as special counsel in November to
take on the dual investigations into Mr. Trump’s efforts to cling to power and the handling of
classified documents at the former president’s Mar-a-Lago estate in southern Florida. It
couldn’t immediately be determined whether prosecutors want to question Mr. Meadows also
in connection with the Mar-a-Lago investigation.
Mr. Meadows has been at the center of other investigations into Mr. Trump’s efforts to
reverse his electoral defeat in 2020. Last year, the South Carolina Supreme Court ordered him
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to testify before an Atlanta-area grand jury as part of a local prosecutor’s investigation into
the former president’s efforts to interfere with election results in Georgia.
The House referred Mr. Meadows to the Justice Department for prosecution after holding him
in contempt for refusing to testify before the panel that investigated the Jan. 6, 2021, attack
on the Capitol. The Justice Department declined to prosecute him.
In the course of its investigation, the House Jan. 6 committee aired testimony that cast Mr.
Meadows as a close Trump adviser with some awareness of the potential for violence on Jan.
6, 2021, the day Congress was set to certify Mr. Trump’s loss to President Biden.
A top aide to Mr. Meadows, Cassidy Hutchinson, testified that he told her on Jan. 2, 2021, that
“things might get real, real bad on Jan. 6.” In videotaped testimony, Ms. Hutchinson said
Messrs. Meadows and Trump were both told that members of the crowd for Mr. Trump’s
speech at the Ellipse on that day were armed with knives, guns, bear spray and other
weapons.
The recent subpoenas suggest Mr. Smith’s investigation is intensifying.
In the separate investigation of classified documents at Mar-a-Lago, prosecutors are asking a

judge to compel further testimony from one of the former president’s lawyers, in a bid to
break through claims of executive privilege raised during a recent grand jury appearance,
according to people familiar with the Justice Department’s action.
The prosecutors have asked the chief judge in Washington’s federal trial court to invoke the
so-called crime-fraud exception, which would allow them to bypass attorney-client privilege
and extract more testimony from Trump lawyer Evan Corcoran, the people said. The
exception applies in instances where there is reason to believe legal advice has been used in
furtherance of a crime.
The move to invoke the crime-fraud exception suggests that federal prosecutors suspect that
Mr. Trump or his allies used Mr. Corcoran’s services in such a way.
A spokesman for Mr. Trump declined to comment on the tactics of the investigation, which he
called a “targeted, politically motivated witch hunt against President Trump, concocted to try
and prevent the American people from returning him to the White House.”
—Alex Leary contributed to this article.
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Write to C. Ryan Barber at [email protected] and Sadie Gurman at

[email protected]
Appeared in the February 16, 2023, print edition as 'Special Counsel Subpoenas Meadows'.
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2/24/23, 12:50 PM Mike Pence Subpoenaed by Special Counsel in Trump Investigation - The New York Times
https://www.nytimes.com/2023/02/09/us/politics/pence-subpoena-trump.html
Pence Gets Subpoena From Special Counsel in Jan. 6 Investigation

The move by Jack Smith, the special counsel, is one of the most aggressive in his investigation of Donald Trump’s efforts to stay in power
and is likely to lead to a battle over executive privilege.
By Maggie Haberman and Glenn Thrush

Feb. 9, 2023 4 MI N R EAD
Former Vice President Mike Pence has been subpoenaed by the special counsel investigating former President Donald J. Trump’s efforts
to cling to office after he lost his bid for re-election, a person familiar with the matter said on Thursday.
The move by the Justice Department sets up a likely clash over executive privilege, which Mr. Trump has previously used to try to slow,
delay and block testimony from former administration officials in various investigations into his conduct.
The existence of the subpoena was reported earlier by ABC News.
It was not immediately clear when the special counsel, Jack Smith, sought Mr. Pence’s testimony. The move is among the most aggressive
yet by Mr. Smith in his wide-ranging investigation into Mr. Trump’s role in seeking to overturn the outcome of the 2020 election. He is also
overseeing a parallel inquiry into Mr. Trump’s handling of classified documents.
The New York Times previously reported that the Justice Department was seeking to question Mr. Pence in connection with the
investigation into Mr. Trump’s efforts to remain in power after he lost the 2020 election and had reached out to his team.
Mr. Pence is potentially a key witness because he is one of the people best positioned to provide information about Mr. Trump’s state of
mind at the time, even though his relationship with Mr. Trump reached the breaking point in the days leading up to the Jan. 6, 2021, riot at
the Capitol, legal experts said.
Mr. Pence’s team held discussions with the Justice Department about a voluntary interview, according to the person familiar with the
matter, but those talks were at an impasse, leading Mr. Smith to seek the subpoena.
An aide to Mr. Pence declined to confirm the existence of the subpoena. A Justice Department official did not respond to a request for
comment.
It is not clear whether investigators will also seek to question Mr. Pence in the matter of Mr. Trump’s handling of classified material, or
what he could have to share that would be relevant. Mr. Pence’s advisers recently alerted the Justice Department that he had found some
documents with classified markings at his home in Indiana, after conducting a search following the discovery of classified documents at
President Biden’s home in Delaware and at a think tank office he used in Washington.
Justice Department officials have signaled that they plan a more thorough search of Mr. Pence’s home.
The subpoena from Mr. Smith comes at a moment of rising tension between the Pence team and the Justice Department over the
discussions about searching the former vice president’s home.
Lawyers with the department’s national security division have been discussing the details of a possible agreement to search Mr. Pence’s
house in Indiana for additional government documents on a parallel track; Mr. Pence’s advisers were incensed by the disclosure of a
pending search last week and blamed the department for leaking details to pressure them.
Another former Trump administration official, the final national security adviser, Robert C. O’Brien, has received a subpoena in connection
with the handling of the documents found to be in Mr. Trump’s possession, according to a person familiar with the matter.
But Mr. Pence figures most centrally in the inquiry into Mr. Trump’s efforts to use the government to remain in power. Mr. Trump seized on
Mr. Pence’s ceremonial role in overseeing the congressional certification of the Electoral College results to try to press his vice president
into blocking or delaying the outcome on Jan. 6.
Mr. Pence refused, a fact highlighted publicly by Mr. Trump as he stirred up a crowd of supporters that day before they marched to the
Capitol and breached it. Some of the rioters chanted, “Hang Mike Pence.”
Mr. Pence described some of his ordeal in his recently published book, “So Help Me God.”
Mr. Trump has frequently tried to assert executive privilege when officials have sought testimony from people who worked for him in the
White House. He has generally been unsuccessful, but those battles over which matters privilege covers have slowed some of the
investigations.
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2/24/23, 12:50 PM Mike Pence Subpoenaed by Special Counsel in Trump Investigation - The New York Times
That included when two top aides to Mr. Pence — his former chief of staff, Marc Short, and his former counsel, Greg Jacob — were
subpoenaed to testify before a grand jury.
Mr. Pence is being represented by Emmet T. Flood, a veteran lawyer who was the lead official in the White House Counsel’s Office under
Mr. Trump dealing with the special counsel investigation into whether Mr. Trump’s 2016 campaign conspired with Russian officials, and
whether the former president obstructed justice.
Mr. Pence is a potential rival to Mr. Trump for the 2024 Republican presidential nomination. Mr. Trump is so far the only declared
candidate in that race. And Mr. Biden, who is also the subject of a recently named special counsel looking into the documents found at his
home and the Penn Biden Center, is widely expected to declare another presidential campaign for a second term.
Mr. Smith has vowed to expedite the investigation into Mr. Trump, and has moved to consolidate and focus what was seen inside the
department as a sprawling inquiry into Mr. Trump’s efforts to overturn the election and the Jan. 6 attack, according to people familiar with
the situation.
That has intensified in recent weeks, as Mr. Smith’s staff — led by Thomas Windom, a veteran prosecutor who had been working out of the
office of the U.S. attorney in Washington — has pored through hundreds of witness transcripts turned over by the House committee that
investigated the Jan. 6 attack.
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2/24/23, 12:51 PM Special counsel Jack Smith is locked in at least 8 secret court battles in Trump investigations | CNN Politics
presidency, separation of powers and attorney-client confidentiality in ways they’ve never

done before.
Yet almost all of the proceedings are sealed, and filings and decisions aren’t public.
The sheer number of grand jury challenges from potential witnesses is both a reflection of
the scope of the special counsel’s investigation and a hallmark of Trump’s ultra-combative
style in the face of investigations.
RELATED ARTICLE
Pence says he's willing to take fight against DOJ subpoena in Trump probe to
Supreme Court
By comparison, Robert Mueller’s grand jury investigation into Trump had a smattering of
sealed proceedings where investigators used the court to pry for more answers, and
independent counsel Kenneth Starr’s Whitewater investigation ultimately totaled seven
similar sealed cases.
A key sealed case revealed Wednesday is an attempt to force more answers about direct
conversations between Trump and his defense attorney Evan Corcoran, where the Justice
Department is arguing the investigation found evidence the conversations may be part of
furthering or covering up a crime related to the Mar-a-Lago document boxes.
A spokesman for Smith’s office declined to comment.
About half a dozen cases are still ongoing in court, either before Chief Judge Beryl Howell
or in the appeals court above her, the DC Circuit. Most appear to follow the typical arc of
miscellaneous cases that arise during grand jury investigations, where prosecutors
sometimes use the court to enforce their subpoenas.
More challenges from subpoenaed witnesses – including former Vice President Mike Pence
– are expected to be filed in the coming days, likely under seal as well. Pence may raise
novel questions about the protections around the vice presidency.
Investigations that implicate government officials often beget sealed court proceedings,
because confidential grand jury witnesses become more likely to assert privileges that
prompt prosecutors to ask judges to compel more answers, criminal law experts say.
“I think we are in extraordinary times. Part of it is I think President Trump continues to

assert these theories long after they’ve been batted away by the court,” Neil Eggleston, a
former White House counsel who argued for executive privilege during the Clinton
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administration and the Whitewater investigation.
In Whitewater, after the court in DC ruled that privilege claims wouldn’t hold up when a
federal grand jury needed information, other witnesses shied away from trying to refuse to
testify, Eggleston recalled. But in the Trump investigations, witnesses aligned continue to
test whether he still may have special confidentiality protections.
Still, the number of cases is out of the ordinary.
The other known cases are:
The Justice Department’s long-running effort to enforce a May 2022 subpoena for all
classified records in Trump’s possession. After a sealed December hearing, Howell gave
Smith’s investigators an avenue to ask more questions of two people hired to search
Trump’s properties in December and found more documents with classified markings.
Those two people testified to the grand jury late last month. Sixteen national media
outlets, including CNN, have asked Howell to make public transcripts of hearings and other
records in the case.
An appeal over whether former Pence chief counsel Greg Jacob and chief of staff Marc
Short should have been forced to answer questions about Trump interactions around
January 6. Both went to the grand jury in DC on the same Friday last July and refused to
give some answers because of Trump’s attempted claims of confidentiality around the
presidency. Court orders prompted them to testify a second time, seeking out more
testimony from them in October last year, CNN previously confirmed. They both appeared
a second time at the grand jury. The Trump team still has filed an appeal of Howell’s
decisions.
An appeal over whether former Trump White House counsel Pat Cipollone and deputy
White House counsel Patrick Philbin could decline to answer questions about direct
conversations with Trump from the end of his presidency. Both men cited various
privileges when they testified to the grand jury in September, but were forced to appear a
second time and give more answers after court rulings in November and December, CNN
previously confirmed. Though they have already testified twice, Trump’s team filed an
appeal.
RELATED ARTICLE
Trump lawyer says searches for classified material at Trump properties are complete
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Following the seizure of Pennsylvania GOP Rep. Scott Perry’s cell phone in August in the
January 6 investigation, lawyers for the congressman challenged the Justice Department’s
ability to access data taken from the phone, citing protection around Congress under the
Constitution’s Speech or Debate Clause. Howell refused to keep the records from
investigators, but an appeals court panel has blocked the DOJ from seeing the records so
far, according to indications in the court record. The case is set for oral arguments on
February 23 at the appeals court in Washington. The circuit court also has a request from
the Reporters Committee for Freedom of the Press to unseal documents in the case.
Both Republican and Democratic leadership in the US House have wanted a part in the
case because of the implications for Congress, CNN has confirmed.
Howell has released redacted versions of two attorney confidentiality decisions she made
last year giving prosecutors access to emails between Perry and three lawyers – John
Eastman, Jeffrey Clark and Ken Klukowski – before January 6, 2021.
Howell separately denied Clark’s attempt to keep from investigators a draft of his
autobiography that discussed his efforts at the Justice Department on behalf of Trump
before January 6. Clark had tried to mark the draft outline about his life as an attorney
work product.
The Justice Department secured a court order for Trump adviser Kash Patel to answer
questions under oath in the Mar-a-Lago investigation. Patel initially declined to answer
questions before the grand jury in October, citing his Fifth Amendment protection against
self-incrimination. Then prosecutors fought for more answers by immunizing his testimony
from prosecution, CNN previously reported.
Transparency is lacking
The suite of special counsel’s office grand jury cases raises questions how transparent the
courts will be regarding these cases, and how soon documents filed in court could
become available.
The New York Times and Politico are trying to convince Howell to release redacted
versions of any sealed court fights related to the grand jury where Trump or others in his
administration have tried to limit the investigation with claims of executive privilege,
according to court filings.
The media organizations argue there’s a “profound national interest” in those legal papers.
But the Justice Department is against making disclosures related to the grand jury
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2/24/23, 11:17 AM Trump Copes With Facebook, Twitter Ban by Relying on Email, Media Interviews - WSJ
This copy is for your personal, non-commercial use only. Distribution and use of this material are governed by our Subscriber Agreement and by copyright law. For
non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit www.djreprints.com.
https://www.wsj.com/articles/trump-copes-with-facebook-twitter-ban-by-relying-on-email-media-interviews-11620226189
POLITICS
Trump Copes With Facebook, Twitter Ban by

Relying on Email, Media Interviews
Cut off from social media, the former president pursues other ways to get his
message out
When he was president, Donald Trump relied on Twitter to communicate with supporters; now he relies on email.
Supporters of the former president marched down Fifth Avenue in New York City on March 5.
PHOTO: JOHN MINCHILLO/ASSOCIATED PRESS
By Alex Leary Follow

May 5, 2021 10:49 am ET
In the heat of the 2016 presidential campaign, then-candidate Donald Trump said, “I’m just
not a believer in email.” Since he was banned from social media earlier this year, it has been
his go-to communication tool.
Unable since January to tweet, put videos on YouTube or post to Facebook—whose oversight
board upheld the ban on Wednesday and gave the company six months to determine whether
Mr. Trump should be permanently banned—the former president has been blast emailing
statements to comment on daily news developments, endorse candidates and target critics.
He continues to claim in emailed statements and in private gatherings with supporters that
the election was rigged. There is no evidence there was widespread fraud in the election, and
Mr. Trump’s campaign and his allies failed in dozens of court challenges to the results.
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“They’re really much more elegant. And the word is getting out,” Mr. Trump said of his
emailed statements in a recent Newsmax interview.
Mr. Trump spoke at the Conservative Political Action Conference, or CPAC, in Orlando, Fla., on Feb. 27.
PHOTO: ELIJAH NOUVELAGE/BLOOMBERG NEWS
“The tweeting gets you in trouble,” Mr. Trump added. “You’re retweeting people and you find
out that the retweets were not so good, because the person—if you didn’t do research—that
you’re retweeting is not the best. … I like this better than Twitter. Actually, they did us a
favor.”
But while Mr. Trump once could instantly communicate to tens of millions of people, his email
reach is smaller and slower, people familiar with the process say. News outlets that once hung
on his every word are being more selective. Lawmakers too say they are relieved not to have
to react to the barrage of tweets.
A spokesman declined to say how large the email list is.
Mr. Trump has floated the idea of creating his own social-media platform. On Tuesday, Mr.
Trump’s website added a section— titled “From the Desk of Donald J. Trump” —that contains
his statements with buttons for people to share on Twitter and Facebook. Trump spokesman
Jason Miller said in a tweet that the site is “not a new social media platform. We’ll have
additional information coming on that front in the very near future.”
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Mr. Trump made a speech at a dog-rescue fundraising event at Mar-a-Lago on March 12.
PHOTO: VALENTINA AVED VIA STORYFUL
Mr. Trump has done a handful of TV interviews, with Newsmax, One America News Network
and Fox News, allowing him a broad audience. He has also appeared on podcasts and radio
shows. In a conversation last week with conservative host Dan Bongino, Mr. Trump suggested
he is planning to revive his campaign-style rallies, while he continues to tease the idea of
running for president in 2024.
He has closely followed the news from his Mar-a-Lago club in Florida, aides say, and has
regular talks with political advisers. A stream of candidates have visited him in hopes of an
endorsement. Some are holding fundraisers at the club, in hopes the former president makes
a personal appearance. Mr. Trump is planning to relocate to his Bedminster golf club in New
Jersey for the summer.
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The Trump statements are sent through his official office or political action committee, Save
America PAC. They read like long versions of his former tweets, full of capital letters,
exclamation points, boasts about his record in office, attacks on rivals and general musings.
“What used to be called The Academy Awards, and now is called the ‘Oscars’—a far less
important and elegant name—had the lowest Television Ratings in recorded history, even
much lower than last year, which set another record low,” he wrote last week.
“Why is it that every time the 2020 ELECTION FRAUD is discussed, the Fake News Media
consistently states that such charges are baseless, unfounded, unwarranted, etc.?” he
lamented on April 2. “Other than that, Happy Easter!”
Mr. Trump dictates the messages to an aide, according to two people familiar with the
process, and the message is reviewed by staff before being sent out. He is given a printed-out
copy and sometimes makes edits in black marker.
Some of the emails have generated news, such as one attacking Senate Minority Leader Mitch
McConnell (R., Ky.) following his criticism of Mr. Trump’s rhetoric leading up to the Jan. 6
Capitol riot. Despite the Twitter ban, the statements have appeared in tweets from other
users.
Republican adversaries are a frequent target, including House GOP Conference Chairwoman
Liz Cheney of Wyoming, Utah Sen. Mitt Romney and his former national security adviser John
Bolton.
The back and forth with Ms. Cheney escalated this week, after Mr. Trump issued an email
statement calling the 2020 election “THE BIG LIE.” She responded on Twitter that calling the
election stolen poisons the democratic system, prompting him to call her a “warmonger” who
polls badly.
Regardless of the Facebook decision, Mr. Trump appears to have moved on from Twitter,
which banned him permanently. Speaking on Fox News in late March, he said, “It’s become
very, very boring.”
Write to Alex Leary at [email protected]
Appeared in the May 6, 2021, print edition as 'Former President Turns To Email'.
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2/24/23, 12:52 PM Trump Has Started Texting - The New York Times
https://www.nytimes.com/2023/01/25/us/politics/trump-texting.html
OMG. Trump Has Started Texting.

The former president, averse to leaving records of his communications, had long avoided text and email.
By Jonathan Swan and Maggie Haberman
Jan. 25, 2023 3 MI N R EAD
One of former President Donald J. Trump’s most consistent personal traits — one that his advisers say has helped keep him out of even
worse legal jeopardy — has been his refusal to communicate by text or email.
Until now.
Mr. Trump, 76, who is heading into his third presidential campaign and is still under scrutiny by investigators on multiple fronts, has at last
become a texter, according to three people with knowledge of his new habit. His messages have recently shown up in the phones of
surprised recipients, they said.
The former president’s resistance to texting frustrated investigators for the House Jan. 6 committee as they tried to track his thoughts and
actions when he worked to overturn the 2020 election. In his testimony before the committee, the former president’s eldest son, Donald
Trump Jr., said he texted the White House chief of staff, Mark Meadows, during the Capitol attack because his father “doesn’t text.”
That changed around the beginning of this year. Friends, confidants and even people not especially close to Mr. Trump began receiving
text messages from his cellphone, most of them described as innocuous, such as new year greetings or political observations. A
spokesman for Mr. Trump declined to comment.
The former president has long been constantly on his phone, but only to talk into it — or, before he was kicked off Twitter, to send streams
of tweets. (The former aide who helped set up his Twitter account once told Politico that when Mr. Trump, who initially relied on aides to
write his posts, began to tweet on his own, it was akin to the scene in the film “Jurassic Park” when the velociraptors learned to open
doors.)
For years, people corresponding with him sent him text messages, which always went unanswered. He was unreachable by email. He
sometimes asked aides to send electronic messages to reporters, referring to the missives as “wires,” like a telegram.
Now, his delayed embrace of what has long been a default mode of communication spanning generations signals not only a willingness to
join in the world of LOL’s and BRB’s but also a small shift from his aversion to leaving paper or electronic trails.
People who have worked for Mr. Trump in the White House and in his private business say he has prided himself on being “smart” for
leaving almost no documentation of his communications and discussions in meetings. That included snatching notes being taken in real
time by a junior legal associate in his offices in the 1990s, when Mr. Trump spotted the man scribbling, according to a consultant working
for him then.
Those who have witnessed firsthand his visceral aversion to record-keeping said they were shocked to learn about his new electronic
habit.
“Has he now also started to take notes?” John R. Bolton, Mr. Trump’s former national security adviser, dryly texted when told about the
former president’s texting.
Mr. Trump upbraided Mr. Bolton, who wrote one of the most searing book-length accounts of the Trump presidency, for taking notes during
meetings.
Mr. Trump also chided Donald F. McGahn II, his first White House counsel, for notes he took. Mr. McGahn, when interviewed by the
special counsel Robert S. Mueller III during the Russia investigation, described informing Mr. Trump that he took notes because he was a
“real lawyer.”
“I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes,” Mr. McGahn recounted Mr. Trump saying, referring to his ruthless
longtime fixer and mentor who became the prototype for what Mr. Trump sought in a lawyer.
The fact that Mr. Trump is now sending texts has caused alarm among some of his associates, who are concerned about what he might say.
Still, they have been relieved about another shift: His phone now sends calls that are not from numbers in his contacts to voice mail,
according to two people familiar with the change.
That shift occurred this month, after an NBC reporter called Mr. Trump directly during Representative Kevin McCarthy’s desperate fight
to be elected speaker of the House. Mr. Trump picked up, giving a brief interview that created some political heartburn for Republicans.
Still unclear is Mr. Trump’s position on emojis.
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2/24/23, 11:21 AM Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe - WSJ
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For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit www.djreprints.com.
https://www.wsj.com/articles/trump-lawyers-appeared-before-grand-jury-as-part-of-classified-documents-probe-3d1c8040
POLITICS
Trump Lawyers Appeared Before

Grand Jury as Part of Classified-
Documents Probe
Evan Corcoran and Christina Bobb’s appearances come as the Justice
Department ramps up Mar-a-Lago investigation
Evan Corcoran has represented Donald Trump in dealings with the Justice Department over the classified
documents.
PHOTO: MARCO BELLO/AGENCE FRANCE-PRESSE/GETTY IMAGES
By C. Ryan Barber Follow and Alex Leary Follow

Updated Feb. 11, 2023 6:57 pm ET
Two lawyers for Donald Trump appeared before a grand jury last month as part of the special
counsel investigation into the handling of classified documents and other records discovered at
the former president’s South Florida residence and private club, according to people familiar
with the matter.
Christina Bobb and Evan Corcoran, lawyers who have represented Mr. Trump in dealings with
the Justice Department over the classified documents, made their appearances in the early
weeks of January as the special counsel, Jack Smith, ramped up his investigation, the people
said.
https://www.wsj.com/articles/trump-lawyers-appeared-before-grand-jury-as-part-of-classified-documents-probe-3d1c8040?mod=Searchresults_pos5&… 1/4
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The two have faced scrutiny since last year, when the Federal Bureau of Investigation found a
cache of classified documents at Mr. Trump’s Mar-a-Lago estate during a court-authorized
search. In a court filing after that search, the Justice Department said the discovery of
documents during the Aug. 8 search “cast serious doubt” on a sworn statement Ms. Bobb had
signed in June attesting that all materials requested by a subpoena to Mr. Trump had been
turned over to the Justice Department. In fact, more records were later retrieved from the
property.
The Justice Department declined to comment.
Ms. Bobb declined to comment on Saturday. Her grand jury appearance hasn’t previously been
reported.
Mr. Corcoran’s appearance was earlier reported by Bloomberg News. He didn’t respond to
repeated requests for comment.
Their appearances came as the Justice Department ramped up the investigation into the
potential mishandling of sensitive records at Mar-a-Lago. Attorney General Merrick Garland
appointed Mr. Smith, a former public integrity and war crimes prosecutor, in November to
oversee the dual investigations into the mishandling of classified records and Mr. Trump’s
efforts to overturn the 2020 election results.
A cache of classified documents was discovered last year at Donald Trump’s Mar-a-Lago estate.
PHOTO: JOE RAEDLE/GETTY IMAGES
In recent weeks, Mr. Smith’s office has moved aggressively with subpoenas to associates of Mr.
Trump and requests for prompt productions of documents, according to people familiar with
the investigation. The Wall Street Journal reported Thursday that the special counsel
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subpoenaed former Vice President Mike Pence as part of the investigation into efforts to
overturn the 2020 election.
Ms. Bobb had previously spoken with federal investigators. In an October interview, Ms. Bobb
said Mr. Corcoran had assured her that he conducted a thorough search of Mar-a-Lago before
he asked her to certify that all records requested by a subpoena had been returned, the Journal
reported. Ms. Bobb at the time insisted on adding language to the certification that said she was
acting “based upon the information that has been provided to me,” and “to the best of my
knowledge.” She declined an offer of immunity, saying she didn’t need it, according to people
familiar with the process.
Mr. Corcoran handled Mr. Trump’s responses to government requests for the return of records
from his presidency. He accepted a subpoena requesting those documents, according to court
records, and was present at Mar-a-Lago in June when federal officials arrived at the West Palm
Beach estate to collect more materials.
In May, Mr. Corcoran wrote a letter to the Justice Department asserting that Mr. Trump had
“readily and voluntarily agreed” to send the materials to the National Archives after the agency
requested them. In the letter, which was revealed in court filings following the Mar-a-Lago
search, Mr. Corcoran also warned it was critical that the Justice Department’s steps “not involve
politics,” and he argued that a president’s actions with classified documents aren’t subject to
criminal sanction.
Mr. Corcoran has more recently represented Mr. Trump in legal proceedings related to the
investigation into mishandling of classified documents at Mar-a-Lago, which is also examining
potential obstruction of justice. In December, he was observed entering the chambers of Chief
Judge Beryl Howell for a sealed proceeding related to a grand jury matter.
A former federal prosecutor, Mr. Corcoran has also represented close allies of Mr. Trump. Last
year, he defended Mr. Trump’s former strategist Steve Bannon against criminal contempt of
Congress charges stemming from his defiance of a subpoena issued by the House committee
that investigated the Jan. 6, 2021, attack on the Capitol. A jury found Mr. Bannon guilty in July.
Mr. Bannon was later sentenced to four months in prison, but a judge allowed him to remain
free while Mr. Bannon challenges the criminal conviction in the U.S. Court of Appeals for the
D.C. Circuit.
In January, just weeks after his grand jury appearance, Mr. Corcoran appeared on Mr. Trump’s
behalf in the contempt of Congress case against another onetime Trump White House adviser,
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Peter Navarro. In a Jan. 23 letter, which was filed in federal court, Mr. Corcoran endorsed Mr.
Navarro’s decision to rebuff a subpoena from the House Jan. 6 committee by raising executive
privilege claims.
Write to C. Ryan Barber at [email protected] and Alex Leary at [email protected]
Appeared in the February 13, 2023, print edition as 'Trump Lawyers Appeared Before Grand Jury in Probe'.
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IN THE MATTER OF THE SEARCH OF: Case No. 23-SC-31

PREMISES CONTROLLED BY TWITTER Under Seal and
INC. IDENTIFIED IN ATTACHMENT A Ex Parte to Government
Chief Judge Beryl A. Howell
MEMORANDUM OPINION
For what appears to be the first time in their nearly seventeen-year existence as a company,
see generally Letter from Counsel for Twitter, Inc. (SEALED), ECF No. 14, Twitter Inc.
(“Twitter”) seeks to vacate or modify an order, issued under the Stored Communications Act of
1986 (“SCA”), 18 U.S.C. § 2701 et seq., commanding that the company not disclose the existence
of a search warrant for a user’s Twitter account, and further seeks to condition any compliance by
the company with that search warrant on the user (or user’s representatives) first being notified
about the warrant and given an opportunity to stop or otherwise intervene in execution of the
warrant. See Twitter’s Mot. to Vacate or Mod. NDO and Stay Twitter’s Compl. with Warrant
(“Twitter’s Motion”) (SEALED), ECF No. 7; see also Twitter’s Mem. Supp. Twitter Mot.
(“Twitter Mem.”) (SEALED), ECF No. 7-1. This is an extraordinary request. Twitter denies that
this action is being taken by the company due to the identity of the targeted Twitter account
(“Target Account”) or its user, suggesting instead that Twitter regularly engages in challenging
SCA nondisclosure orders (“NDOs”)—though concededly never before regarding a covert search
warrant—and assuring the Court that the fact that the user of the Target Account (“the User”) is a
high-profile public figure is merely coincidence. See Feb. 7, 2023 Hrg. Tr. at 60:9-22 (SEALED)
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permission to alert the User about the search warrant, the company failed fully and timely to
comply with the Warrant, in violation of two court orders.
As explained below, the government has established that, even if strict scrutiny analysis
applies—which the Court assumes without deciding—the compelling interests of avoiding the
harms to the criminal investigation, as authorized in § 2705(b), warrant Twitter’s continued
nondisclosure of the warrant’s existence, and the NDO is the narrowest possible way available to
protect those compelling government interests. Accordingly, Twitter’s motion to vacate or modify
the NDO is denied. Moreover, Twitter must pay $350,000 in contempt fines for failing to comply
with the warrant in a timely manner, a delay for which Twitter bears full responsibility.
I. BACKGROUND
The relevant statutory, factual and procedural background is summarized below.
A. Statutory Framework
The SCA governs how providers of “electronic communications service[s] [“ECS”],” as
defined in 18 U.S.C. § 2510(15), and “remote computing service [“RCS”]” providers, as defined
in 18 U.S.C. § 2711(2), may be compelled to supply records related to that service in response to
a subpoena, court order, or search warrant. As relevant here, the SCA’s §§ 2703(a), (b)(1)(A), and
(c) provide that the government may obtain contents of communications, as well as non-content
information and records or other information, about a subscriber or customer of such service, via
a search warrant. See Id. § 2703(a)-(c). Twitter enables account holders to share and interact with
electronic content and to send and receive electronic communications with other users, publicly or
privately, and is indisputably an ECS and RCS provider. See NDO Appl. ¶ 3.
The SCA is silent as to any obligation of ECS/RCS providers to notify subscribers about
the providers’ production of records in response to subpoenas, court orders, or search warrants,
implicitly allowing such notification on a voluntarily basis. Indeed, Twitter promotes a policy of
3
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“notify[ing] its users of any requests from law enforcement for account information, particularly
requests for contents of communications, unless prohibited from doing so.” Twitter Mem. at 1.
The SCA is explicit, however, in authorizing “governmental entit[ies],” which includes federal
“department[s] or agenc[ies]” and those of “any State or political subdivision thereof,” 18 U.S.C.
§ 2711(4), to apply for and obtain a judicial order “commanding” a provider of ECS or RCS “to
whom a warrant, subpoena, or court order is directed, for such period as the court deems
appropriate, not to notify any other person of the existence of the warrant, subpoena, or court
order.” Id. § 2705(b). Upon receipt of such an application, the SCA requires that “[t]he court
shall enter such an order if it determines that there is reason to believe that notification of the
existence of the warrant, subpoena, or court order will result in” any of five enumerated harms. Id.
(emphasis added). These enumerated harms broadly cover: “(1) endangering the life or physical
safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.” Id. “The explicit terms of section 2705(b) make clear that if a court[]
finds that there is reason to believe that notifying the customer or subscriber of the court order or
subpoena may lead to one of the deleterious outcomes listed under § 2705(b), the court must enter
an order commanding a service provider to delay notice to a customer for a period of time that the
court determines is appropriate.” Matter of Application of U.S. of Am., 45 F. Supp. 3d 1, 5 (D.D.C.
2014).
A service provider is authorized to move “promptly” to quash or modify an order for
disclosure of the contents of communications, such as the warrant at issue here, under two specific
circumstances: first, “if the information or records requested are unusually voluminous in nature,”
18 U.S.C. § 2703(d), or, second, “compliance with such order otherwise would cause an undue
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burden on such provider,” id. Twitter does not contend that either of those circumstances are
present here. The SCA is notably silent in providing any statutory authorization for a service
provider to challenge an NDO. Instead, in a mechanism designed to encourage compliance with
NDOs and minimize litigation, particularly during an ongoing criminal investigation when SCA
authorities are employed by law enforcement, the SCA expressly relieves providers from any
liability on any claim in any court for disclosing their customer’s information in compliance with
an SCA order. See id. § 2703(e) (“No cause of action shall lie in any court against any provider
of wire or [ECS], its officers, employees, agents, or other specified persons for providing
information, facilities, or assistance in accordance with the terms of a court order, warrant,
subpoena, statutory authorization, or certification under this chapter.”).
B. The Search Warrant and NDO At Issue
On November 18, 2022, Attorney General Merrick Garland announced the appointment of
Jack Smith to serve as Special Counsel to oversee two ongoing criminal investigations into
(1) unlawful interference with the transfer of power following the 2020 presidential election,
including certification of the Electoral College vote held on January 6, 2021, (“the January 6th
Investigation”), and (2) unlawful retention of classified documents and possible obstruction (“the
Classified Documents Investigation”). See “Appointment of a Special Counsel,” Department of
Justice (Nov. 18, 2022), available at https://www.justice.gov/opa/pr/appointment-special-counsel-
0 (last visited on Mar. 2, 2023). As part of the January 6th Investigation, on January 17, 2023, the
government applied for, and the Court issued, based on an affidavit establishing probable cause to
believe the Target Account contains evidence of criminal activity, a search warrant to search the
Target Account and seize responsive records
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of the Warrant were submitted to Twitter, consisting of the Warrant with Attachment A and part
of Attachment B. See Gov’t’s Ex Parte Opp’n, Ex. A. (SEALED), ECF No. 22-1; see also Feb.
7, 2023 Hrg. Tr. at 9:1-19 (same). Twitter has thus never been privy to the remaining parts of
Attachment B to the Warrant, the Warrant Affidavit or Application, nor even the Application for
the NDO. Twitter Mem. at 1 (conceding “Twitter has not seen” the ex parte application for the
NDO); Feb. 7, 2023 Hrg. Tr. at 9:1-19 (government counsel agreeing that Twitter has only seen
the warrant, Attachment A, and Part 1 of Attachment B).
The government’s initial service attempts on Twitter failed twice, with the government’s
receipt both times of an automated message indicating that Twitter’s “page [was] down.” Gov’t’s
Mot. at 2 (alteration in original). On January 19, 2023, the government was finally able to serve
Twitter through the company’s Legal Requests Submissions site. Id.
Twitter, however, somehow did not know of the existence of the Warrant until January 25,
2023—two days before the Warrant returns were due. That day, the government contacted Twitter
about the status of the company’s compliance with the Warrant, and Twitter’s Senior Director of
Legal, , “indicated she was not aware of the Warrant but would consider it a
priority.” Id.; see also Decl. of , Senior Director of Legal for Twitter
(“ Decl.”) ¶ 2 (SEALED), ECF No. 9-1. The government indicated that “they were looking
for an on time production, in two days[,]” to which responded, “without knowing more or
taking any position that would be a very tight turnaround for us.” Decl. ¶ 2. The
government sent the six pages of the Warrant and the NDO directly to later that evening.
Meanwhile, directed Twitter’s personnel to preserve data available in its production
environment associated with the Target Account, and “have confirmed that the available data was
preserved.” Id. ¶ 4.
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Twitter notified the government in the evening of January 26, 2023, that the company
would not comply with the Warrant by the next day, id. ¶ 5, and responded to the government’s
request for more specific compliance information, by indicating that “the company was prioritizing
the matter and taking it very seriously” but that had the Warrant and NDO only “for two
days,” id. ¶ 8, even though the government had tried to submit the Warrant and NDO through
Twitter’s Legal Requests Submissions site nine days earlier. The Warrant’s deadline for
compliance makes no exception for the provider’s failure to have a fully operational and
functioning system for the timely processing of court orders.
On January 31, 2023, Twitter indicated for the first time that the company would not
comply with the Warrant without changes to the NDO, stressing as “essential to Twitter’s business
model (including [its] commitment to privacy, transparency, and neutrality) that [Twitter]
communicate with users about law enforcement efforts to access their data.” Id. ¶ 10. Referencing
that “on occasion, [Twitter has] challenged nondisclosure orders,” asserted that the NDO
“did not . . . meet[] the factors outlined in § 2705(b), given the intense publicity around the
investigation.” Id. In a subsequent conversation with government counsel, made clear that
“Twitter’s position would be that we should not produce until we resolved our questions as to the
NDO.” Id. ¶ 12.
2. Government and Twitter’s Cross Motions
Given Twitter’s refusal to comply with the Warrant unless and until its condition was met
allowing disclosure of the Warrant to the Target Account user (or user’s representatives), on
February 2, 2023, the government moved for an Order to Show Cause “why Twitter Inc. should
not be held in contempt for its failure to comply with the Warrant.” Gov’t’s Mot. at 1. The
government explained Twitter had no basis for refusing to comply with the Warrant, pointing out
that the Warrant and NDO were different court orders, so Twitter could “not delay, to an unknown
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future date, compliance with the Warrant by challenging the NDO,” id. at 3, and arguing that
neither “the Warrant itself nor Section 2703 provide for intervention by a third party before
compliance with the Warrant is required,” id.
The same day, Twitter filed its motion to vacate or modify the NDO and stay compliance
with the Warrant, arguing that the requested stay was required to “(1) prevent irreparable injury to
Twitter’s interests that would occur if production under the Warrant were required prior to
resolution, and (2) to preserve the status quo as to the user’s interest in potentially seeking to assert
privilege or otherwise curtail derivative use of potentially privileged communications.” Twitter
Mem. at 3. Twitter highlighted that the Target Account’s User could, in theory, exert a privilege
over his private communications on Twitter (through direct messages with other users), and should
have the opportunity to exert privilege prior to Twitter turning over the information to the
government. Id. at 12–14
The parties were directed to confer and propose a briefing schedule for the pending
motions, Min. Order (Feb. 2, 2023) (SEALED), and the schedule proposed by the government was
ultimately adopted, see Min. Order (Feb. 3, 2023) (SEALED).
3. Hearing on and Resolution of Government’s Motion For Order To

Show Cause
At a hearing held on February 7, 2023 on the government’s motion, see Minute Entry (Feb.
7, 2023) (SEALED), Twitter conceded that: (1) the company had no standing to assert any
privilege by any of its users, including the Target Account’s User, Feb. 7, 2023 Hrg. Tr. at 66:3-
4; accord Twitter Opp’n Mot. Ord. Show Cause at 3 (“Twitter Opp’n”) (SEALED) (same), ECF
No. 9 (SEALED); (2) the company had no confirmation that the Target Account’s User wanted or
would seize on any opportunity to assert any privilege if such opportunity were provided, see Feb.
7, 2023 Hrg. Tr. at 54:11-25; and (3) the company was operating on a mere sliver of the
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information presented to the Court in support of issuance of the Warrant and the NDO, see id. at
48:15-19.
Nevertheless, Twitter argued that “producing the requested information prior to allowing
it the opportunity to alert the [Target Account’s User] would irreparably injure its First
Amendment rights.” Id. at 65:10-14. This argument was rejected for both practical and logistical
reasons as well as legal grounds. If accepted, Twitter’s argument would invite repeated litigation
by Twitter and other ECS providers to challenge NDOs in order to alert users to SCA orders,
particularly for high profile, highly placed users, such as current or former government officials,
with whom the providers might want to curry favor, with concomitant and inevitable delays in
execution of SCA orders and resultant frustration in expeditiously conducting criminal
investigations. See id. at 65:14-20. As a legal matter, the NDO was a wholly separate order from
the Warrant, with different standards applicable to issuance of each.
These concerns had been well articulated by another court in a similar situation of being
confronted with a government motion to compel compliance with an SCA warrant and an ECS
provider simultaneously seeking to challenge an NDO, and capsulized this Court’s decision to
grant the government’s motion because the “public interest is served by prompt compliance with
the [W]arrant” because “any challenge to a NDO is separate from a challenge to a search warrant
[since] any further delay on the production of the materials responsive to the Warrant increases the
risk that evidence will be lost or destroyed, heightens the chance the targets will learn of the
investigation, and jeopardizes the government’s ability to bring any prosecution in a timely
fashion.” Id. at 66:11-17 (paraphrasing Google v. United States, 443 F. Supp. 3d 447, 455
(S.D.N.Y. 2020)).
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In response to the Court’s direct question, Twitter’s counsel represented that the company
was prepared to and could comply with the Warrant by 5:00 PM that day. See Feb. 7, 2023 Hrg.
Tr. at 63:16-19 (THE COURT: Okay. Can Twitter produce the [W]arrant returns by 5 p.m. today?
MR. VARGHESE: I believe we are prepared to do that. Yes, Your Honor.”). The government
requested that if Twitter failed to comply with the Warrant by 5:00 PM that day, an escalating
sanction should be imposed, starting at a sanction of $50,000, an amount that should “double each
day thereafter.” Id. at 33:6-22; see also id. at 33:2-5 (the Court noting that the company “was
bought for $40 billion, and the CEO, sole owner is worth . . . over $180 billion”); Gov’t’s Reply
Supp. Mot. Order Show Cause (“Gov’t’s Reply”) at 10 (SEALED), ECF No. 11 (requesting
“escalating daily fines” for continued noncompliance by Twitter with the Warrant, at an amount
“commensurate with the gravity of Twitter’s non-compliance and Twitter’s ability to pay”). With
Twitter’s assurance of full compliance by close of business that day, and given Twitter’s already
tardy compliance with the Warrant, the Court ordered Twitter to comply with the Warrant by 5:00
p.m. that day or be held in contempt and subject to a fine of $50,000, to double every day of
continued non-compliance with the Warrant. See Min. Order (Feb. 7, 2023) (“Show Cause
Order”) (SEALED).
4. Twitter Fails To Comply Timely With Court’s Show Cause Order
Despite representing that the company would and could comply with the Warrant by 5:00
p.m. on February 7, 2023—by that point, nearly two weeks late—Twitter failed timely to comply
with the Show Cause Order. Gov’t’s Notice Re. Twitter’s Non-Compliance with the Warrant
(SEALED), ECF No. 25. The government explained that prior to 5:00 PM on February 7, “Twitter
made a production to the [g]overnment,” but “[i]n a follow up call on February 8, counsel for
Twitter identified certain information that may (or may not) exist in their holdings and that had
not been produced to the [g]overnment.” Id. Twitter made another production on February 9, and
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in a subsequent call, alerted the government that further productions were expected, though the
company could not provide a timeframe when “all materials responsive to the Warrant would be
produced.” Id. The government accordingly requested a prompt in-person hearing that day
regarding Twitter’s continued failure to fully comply with the Warrant. Id.
At a hearing held later on February 9, 2023, see Minute Entry (Feb. 9, 2023); Feb. 9, 2023
Hrg. Tr. 4:1-5 (SEALED), the Court reviewed with Twitter each part of Part I of Attachment B to
the Warrant to assess the extent of compliance and noncompliance by identifying the responsive
records Twitter had yet to produce. See Feb. 9, 2023 Hrg. Tr. at 6:1–48:20. During this process,
Twitter raised questions for the first time about certain requests, demonstrating that the company
had failed to confer effectively with the government. See, e.g., Feb. 9, 2023 Hrg. Tr. at 5:1-7
(government counsel commenting about Twitter “attempting to cabin one of the requests in the
warrant,” during a call earlier on February 9); id. at 18:25–19:4 (government counsel explaining
that “[t]his is the first time I have heard a complaint about a date limitation on 1H”); id. at 31:21-
24 (government counsel, stating, “What [the government was] told was that there was one
preservation done of the entire history of the account on January 11th. This is the first time we are
hearing about another preservation between January 3rd and January 9.”); id. at 30:2-22, 31:25–
32:3 (after Twitter counsel explained that they were collecting data on potentially responsive
“fleets,” i.e. “vanishing tweets,” government counsel responded, “I have never heard of ‘fleets’ in
part of any discussion that we have had. I don’t know if that is information in this account; it may
or may not be. It still will be relevant, it still will be responsive.”).
After a line-by-line review of Twitter’s responsive and not yet completed productions to
the Warrant, Twitter promised to provide an update to the government, by 4:00 PM that day,
explaining what responsive records were left to produce and when production would be completed.
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Id. at 48:21-24. At the end of the hearing, the Court instructed the government to calculate the
total penalty for Twitter’s failure to comply with the Show Cause Order by the 5:00 p.m. deadline
on February 7, and submit notice of the same to the Court. Id. at 49:5-14.
The government supplied notice, on February 13, 2023, see Gov’t’s Not. Re. Accrued
Sanction (“Government Notice”) (SEALED), ECF No. 19, that Twitter advised the government,
at 8:28 p.m. on February 9, 2023, that “it believed ‘Twitter’s obligations under the Warrant and
the Court’s order were complete.’” Id. at 1–2. With respect to the fine amount, the government
calculated that Twitter owed “$350,000, payable to the Clerk of the Court.” Id. at 2 (“By the terms
of the Court’s order, Twitter was in contempt as of 5:00 p.m. on February 7, 2023, at which point
a $50,000 sanction came into effect. An additional amount of $100,000 accrued at 5:00 p.m. on
February 8, 2023, since Twitter still had not fully complied with the Warrant as of that time. And
at 5:00 p.m. on February 9, 2023, an additional amount of $200,000 accrued.”).
Twitter disputes that any sanction is appropriate, see Twitter Not. Re. Appl. Of Sanctions
at 1 (“Twitter Notice”) (SEALED), ECF No. 18, because the company acted in good faith to
comply speedily after the February 7 hearing, and the government bears the fault for production
delays due to the government’s nonstandard requests combined with the government delaying
clarifying the scope of the Warrant’s requirements. See generally id.
II. DISCUSSION
Twitter’s motion asserts that the NDO violates its First Amendment right to inform the
Target Account’s User of the existence of the Warrant, and accordingly requests the NDO be
modified to allow notification to that User (or his authorized representatives). See Twitter Mem.
at 2–3. The government opposes Twitter’s motion, with both a sealed opposition shared with
Twitter and in an ex parte filing. See Gov’t’s Ex Parte Opp’n; Gov’t’s Sealed Opp’n Twitter’s
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Mot. to Vacate or Modify NDO (SEALED), ECF No. 22. As discussed below, Twitter’s motion
is denied and sanctions are appropriately levied here.
A. Twitter’s Challenge to the NDO Is Without Merit
Twitter asserts that the NDO “constitutes a content-based prior restraint on [its] speech,”
and the government’s interests in keeping the Warrant secret cannot “satisfy strict scrutiny in light
of the significant publicity surrounding the Department of Justice’s criminal investigation into the”
January 6th Investigation and the Classified Documents Investigation. Twitter Mem. at 2. Claims
under the Free Speech Clause of the First Amendment, U.S. CONST. AMEND. I, are analyzed in
three steps: (1) “whether the activity at issue is protected by the First Amendment[;]” (2) “whether
the regulation at issue is content based or content neutral, i.e., if it applies to particular speech
because of the topic discussed or the idea or message expressed[;]” and (3) whether the
government’s justifications for restricting the plaintiff’s speech satisfy the relevant standard, i.e.,
strict or intermediate scrutiny. Green v. United States Dep't of Just., 54 F.4th 738, 745 (D.C. Cir.
2022) (cleaned up). Strict scrutiny requires that the government show its restriction on speech is
“narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155,
163 (2015). “If a less restrictive alternative would serve the Government’s purpose, the legislature
must use that alternative.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
As to the first step, Twitter correctly points out that “the government does not seriously
contest that Twitter has a First Amendment interest in informing its user of the Warrant, nor that
the Non-Disclosure Order operates as a prior restraint on such speech[.]” Twitter Reply Supp.
Mot. to Vacate or Modify NDO (“Twitter Reply”) at 1 (SEALED), ECF No. 27. Other courts have
concluded, and this Court so finds here, that a nondisclosure orders issued under the authority of
the SCA’s § 2705(b) “implicate First Amendment rights because they restrict a service provider’s
speech” and “also constitute[] prior restraint, a characterization typically used to describe ‘judicial
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orders forbidding certain communications when issued in advance of the time that such
communications are to occur.’” Matter of Subpoena 2018R00776, 947 F.3d 148, 155 (3d Cir.
2020) (“Matter of Subpoena”) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993));
see also Google, 443 F. Supp. 3d at 452; In re Info. Associated with E-Mail Accts., 468 F. Supp.
3d 556, 560 (E.D.N.Y. 2020) (“In re E-Mail Accounts”); Matter of Search Warrant for
[redacted].com, 248 F. Supp. 3d 970, 980 (C.D. Cal. 2017) (collecting cases).
With respect to the second step, no decision from this Court, the D.C. Circuit, or the
Supreme Court has established whether strict scrutiny or intermediate scrutiny applies when an
ECS provider challenges a nondisclosure order issued pursuant to the SCA’s § 2705(b). On the
one hand, a nondisclosure order is a content-based restriction on speech, and content-based
restrictions are normally evaluated under strict scrutiny. Green, 54 F.4th at 745 (“[W]e apply . . .
strict scrutiny for content-based statutes[.]”); see also In re Nat’l Sec. Letter, 33 F.4th 1058, 1072
(9th Cir. 2022) (applying strict scrutiny to a nondisclosure requirement because it “is content based
on its face” since “the nondisclosure requirement prohibits speech about one specific issue”). At
the same time, in this context, a “nondisclosure requirement” is “not a typical example of such a
restriction for it is not a restraint imposed on those who customarily wish to exercise rights of free
expression, such as speakers in public fora, distributors of literature, or exhibitors of movies.”
John Doe, Inc. v. Mukasey, 549 F.3d 861, 876 (2d Cir. 2008). Indeed, considering that
nondisclosure orders tend to be narrow in scope, limited to their accompanying orders or warrants
and the facts surrounding them, good reasons exist to subject such orders only to intermediate
scrutiny instead of the exacting requirements of strict scrutiny. See id. at 876 (“[T]he
nondisclosure requirement is triggered by the content of a category of information . . . is far more
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limited than the broad categories of information that have been at issue with respect to typical
content-based restrictions.”).
The strict-scrutiny debate need not be resolved here. Assuming, without deciding, that
strict scrutiny applies to nondisclosure orders, the NDO at issue here survives strict scrutiny review
as a narrowly tailored restriction for which no less restrictive alternative is available that would be
at least as effective in serving the government’s compelling interests.
1. The NDO serves a compelling government interest
The government says that the NDO safeguards “the integrity and secrecy of an ongoing
[criminal] investigation” . Gov’t’s Ex Parte
Opp’n at 14–15. According to the government, these secrecy interests are particularly salient here
because
based on the evidence outlined in its ex parte opposition. Id. at 15; see also
supra at n. 4, infra n.6, and associated text
The government is correct. For starters, “[m]aintaining the integrity of an ongoing criminal
investigation is a compelling governmental interest.” In re E-Mail Accounts, 468 F. Supp. 3d at
560; see also United States v. Smith, 985 F. Supp. 2d 506, 545 (S.D.N.Y. 2013) (“[T]he
[g]overnment has demonstrated that there is good cause for a protective order because of its
compelling interest in ongoing investigations into potentially serious criminal conduct that could
be jeopardized by dissemination of the discovery.”); Matter of Subpoena 2018R00776, 947 F.3d
at 156 (“The government's interest is particularly acute where, as here, the investigation is
ongoing.”). That compelling interest here is magnified by the national import of the January 6th
investigation into conduct that culminated in a violent riot at the U.S. Capitol on January 6, 2021,
and the disruption of the Joint Session of Congress to certify the results of the 2020 presidential
election. Ferreting out activity intended to alter the outcome of a valid national election for the
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leadership of the Executive Branch of the federal government, which activity undermines
foundational principles of our democracy, and assessing whether that activity crossed lines into
criminal culpability, presents as compelling a governmental interest as our very national security.
See Haig v. Agee, 453 U.S. 280, 307 (1981) (quotation marks omitted) (“It is obvious and
inarguable that no governmental interest is more compelling than the security of the Nation.”); see
also Gov’t’s Opp’n at 14 (“And that interest is all the more compelling where the investigation
concerns an effort to overturn the results of an election and thwart the transfer of presidential
power—an effort that culminated in a mob attack on the United States Capitol as lawmakers sought
to carry out their constitutional and statutory obligation to certify the Electoral College results.”).
Additionally, the government has a strong interest in maintaining the “confidentiality of
[its] investigative techniques and [not] cause the subjects of other investigations to change their
conduct to evade detection and otherwise thwart future investigations of similar allegations.” Cf.
In re Los Angeles Times Commc’ns LLC, No. MC 21-16 (BAH), 2022 WL 3714289, at *8 (D.D.C.
Aug. 29, 2022) (quotation marks omitted) (holding that these weighty law enforcement interests,
in the context of an application to unseal court records under the common-law right of public
access to judicial records, weighed in favor of continued sealing of certain search-warrant
materials). Thus, the SCA deems certain factors to be sufficiently compelling to justify issuance
of a nondisclosure order based on reason to believe that disclosure otherwise would pose a risk of
destruction or tampering with evidence, intimidation of witnesses, or “otherwise seriously
jeopardizing an investigation or unduly delaying a trial.” 18 U.S.C. § 2705(b)(3)-(5). In short,
maintaining the confidentiality of the government’s criminal investigation into any efforts
to overturn the 2020 election to ensure that all those
responsible and criminally liable, or not, are identified and that relevant documentary and
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testimonial evidence is both preserved and collected, without spoliation, alteration or tampering,
plainly serves compelling government interests.
Twitter disagrees. In Twitter’s view, “the government cannot credibly show that the
[NDO] . . . serves a compelling governmental interest,” citing “the voluminous publicly available
information about the investigation,” Twitter Mem. at 8; id. at 9-10 (describing, inter alia, media
reports about witnesses “subpoenaed to testify before a federal grand jury” and the appointment of
Special Counsel Jack Smith); see also Twitter Opp’n at 13 (arguing that public revelation of the
search and seizure Warrant at issue here would pose “no credible risk” because “the publicity
surrounding the investigations” being conducted by Special Counsel Jack Smith “is widespread
and unprecedented,” making this investigation “wholly distinct from any typical covert law
enforcement investigation where the targets are unaware of the government’s activities”). With
this perception of “no credible investigative reasons to bar disclosure [] of the existence of the
Warrant,” Twitter urges that the Target Account’s User be alerted to the Warrant so he “may raise
whatever concerns he has, if any, for determination by this Court in a full adversarial proceeding.”
Twitter Mem. at 14. While Twitter denies taking any position “on the applicability of [any]
privilege or the validity of the Warrant,” Twitter Opp’n at 1 (“Twitter is not taking a position
. . . .”); id. at 7 (“Twitter takes no position on the applicability of [] privilege as to these
communications in this circumstance.”), Twitter’s real objection then is that the government is
proceeding covertly with a criminal investigation when, in the company’s view, any privilege issue
“should be resolved through a full adversarial process involving the real parties in interest, not
through an ex parte secret filing.” Id. at 8; Twitter Mem. at 2 (“Allowing Twitter . . . to notify the
account holder would afford the user . . . an opportunity to address the legal issues surrounding a
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demand for [ ] communications in this unique context, and give this Court a full adversarial process
in which to evaluate them.”).
Twitter makes this demand for an adversarial assessment of privilege issues as a condition
of complying with the Warrant, despite not being privy to the full Warrant,
, let alone the other proffered
evidence presented to the Court in issuing the Warrant and the NDO. See Feb. 7, 2023 Hrg. Tr. at
9:20–10:19. Put another way, Twitter is taking the extraordinarily aggressive position as a service
provider to demand that a covert step taken in an ongoing grand jury and criminal investigation be
made public, at least to the account user, before complying with a court order, notwithstanding the
informational void on which it stands.
Despite the fact that Twitter has been privy to only a sliver of the government
documentation underlying the Warrant and NDO, and thus is quite ignorant of details about and
the scope of the government’s current investigation into unlawful interference with the transfer of
power following the 2020 presidential election and in such
illegal activity, the company nonetheless boldly contests any compelling interest the government
may have in continuing to conduct its investigation covertly, bolstered by the NDO, for three
reasons, each of which is meritless. First, Twitter challenges each of the government’s articulated
justifications for the NDO under Section 2705(b), arguing that because some aspects of the
investigation are publicly known, it “strains credulity to believe” that providing the Warrant to the
Target Account’s User will “alter the current balance of public knowledge in any meaningful way”
since that disclosure would at most be “incremental.” Twitter Mem. at 11. 5 For instance, the
5
In support, Twitter cites news articles discussing the existence of the government’s investigations and certain
public steps the government has taken as part of its investigations or courthouse citing of witnesses. Twitter Mem. at
9–11; see also Twitter Opp’n, Ex. B (SEALED), ECF No. 9-2 (culling eighty pages of similar articles discussing the
investigations); Twitter Reply at 5–6 (identifying several members of former president’s administration that have been
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company argues that disclosure of the Warrant is not likely to prompt “the destruction of other
evidence,” Twitter Reply at 4 (emphasis in original), because the public and the User know that
the User is under investigation for any involvement in interfering “with Congress’s certification
of the presidential election on January 6,” id. Nor would it be reasonable, Twitter asserts, “to
conclude that disclosure of this Warrant in particular would spur witness intimidation in view of
that which is already well known about this investigation’s seizure of electronic communications,”
or that the investigation would be seriously jeopardized because the Attorney General “confirmed
the investigation, its scope, and the identity of the target” to the country. Id. at 7–8.
Twitter misapprehends the risks of disclosure here. For one thing, without being privy to
any non-public information about the investigation, including the full Warrant, Warrant
Application and Affidavit, and NDO Application submitted to the Court, Twitter is simply in no
position to assess how much of the media reports and general public information about the
investigation are accurate and how limited that information may be compared to what is known to
investigators. Put bluntly, Twitter does not know what it does not know.
More importantly, Twitter’s argument is unmoored from the realities of what disclosure
would mean here. As the government observes, Gov’t’s Ex Parte Opp’n at 16, Attachment B to
the Warrant provides significant insight into the type and nature of information that the
government requested and targets a key social media account. No public reporting has, thus far,
indicated execution of search warrants for the contents of the User’s personal electronic
communications and records, even if the User is aware of the general contours of the government’s
subpoenaed or compelled to testify, including former vice president Pence, the former president’s daughter and advisor
Ivanka Trump and her husband Jared Kushner, his former chief of staff Mark Meadows, and others). Twitter also
observes that government has itself “confirmed it has seized and is reviewing the email accounts of [the former
president’s] associates as part of the investigation.” Twitter Reply at 9 (citing In re Application of the N.Y. Times Co.
& Charlie Savage, 2023 WL 2185826 (D.D.C. Feb. 23, 2023) (“In re N.Y. Times”)).
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investigation. Specific identification of the Warrant could prompt witnesses, subjects, or targets
of the investigation to destroy their communications or records, including on Twitter or other social
media platforms, and could lead the User to ratchet up public and private pressure on others to
refuse to be cooperative with the government, or even to engage in retaliatory attacks on law
enforcement and other government officials that have real world and violent consequences. This
is not a “conclusory” harm Twitter dismisses out of hand based on its limited information, but
rather could “endanger the life or physical safety of” government officers or “otherwise seriously
jeopardiz[e]” the government’s investigation. See 18 U.S.C. §§ 2705(b). Permitting Twitter to
alert the Target Account’s User of the Warrant may prompt a response to this new investigative
scrutiny of the User’s conduct that could very well result in one of the enumerated harms set out
in Section 2705(b).
Twitter points to “‘the partial unsealing of two judicial decisions resolving filter team
motions’” in relation to one of Special Counsel Smith’s investigations, Twitter Reply at 9 (quoting
In re N.Y. Times, 2023 WL 2185826 *15), but this is both unpersuasive and supports maintaining
the NDO. The two unsealed judicial decisions addressed review of the contents of email accounts
that are not those of the Target Account’s User, so the unsealing of those decisions raise entirely
different risk assessment contexts than here. Furthermore, this Court’s decision in In re N.Y. Times
makes clear that “reliance on and deference to the government is necessary” when considering
whether the release of grand jury materials might harm the government’s investigation because
“courts are not made aware of the full scope of materials presented to the grand jury and therefore
are not best positioned to execute redactions[.]” Id. at *9. As Twitter correctly notes, the Warrant
exists outside the grand jury context—though Warrant returns may be presented to the grand jury
and to that extent become “a matter occurring before the grand jury,” subject to secrecy, under
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455, and that harm plainly outweighs a temporary denial of Twitter’s ability to speak to its user
about the existence of the Warrant. In any event, no matter the privileges the Target Account’s
User may hold, what matters for purposes of the First Amendment is whether the government has
established that the NDO is narrowly tailored to serve a compelling government interest to keep
the Warrant confidential. The government’s interests here are plainly compelling. See supra at
nn. 4, 6, and associated text.
Third, as a last-ditch argument, Twitter says that the government “was required to make
the requisite showing prior to the [NDO] being signed[,]” and any new, “secret rationale” should
be rejected as a “post hoc rationalization[.]” Twitter Reply at 13. Twitter’s argument is both
factually and legally flawed. The government’s argument is not a post hoc rationalization because
the Warrant Affidavit, which was considered simultaneously with the NDO Application, provides
ample reason justifying the NDO. Furthermore, Twitter cites no decision in which an NDO has
been vacated because the government offered additional evidence to support that order when
challenged. See, e.g., John Doe, 549 F.3d at 881 n. 15 (noting that the court permitted the
government “to amplify its grounds for nondisclosure in a classified declaration submitted ex parte
. . . and made available for [the court’s] in camera review”).
The case Twitter relies on to assert that the government cannot provide new support for the
NDO “that [was] not offered at the time the government first sought the” order, Twitter Reply at
13 (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 758 (1988) (“Lakewood”)),
is entirely inapposite. Lakewood addressed a facial challenge to a city ordinance that gave
unbridled discretion to the mayor to issue permits for placement of news racks on public property.
Id. at 753–54. The Court struck down the ordinance, because, without objective standards for
determining whether a permit should issue, impermissible, content-based rejections could be
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disguised by “post hoc rationalizations, . . . making it difficult for courts to determine in any
particular case whether the licensor is permitting favorable, and suppressing unfavorable,
expression.” Id. at 758. Unlike in Lakewood, the government here does not possess unbridled
discretion to silence ECS/RCS providers when applying for an NDO. Rather, an NDO may issue
when, as here, the government has adduced evidence to demonstrate to the Court that notifying
the customer or subscriber of the court order or subpoena may lead to one of the deleterious
outcomes listed under § 2705(b).
2. The NDO is narrowly tailored
In the strict-scrutiny context, which is assumed to apply here, the narrow-tailoring
requirement is a least restrictive–means test. This test requires that “[i]f a less restrictive
alternative for achieving that interest exists, the government ‘must use that alternative.’” Pursuing
Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 510 (D.C. Cir. 2016) (quoting Playboy
Entm’t Grp., 529 U.S. at 804). The less restrictive alternative must “be at least as effective in
achieving the legitimate purpose that the [government action] was [taken] to serve.” Reno v. Am.
Civil Liberties Union, 521 U.S. 844, 874 (1997); see also McCullen v. Coakley, 573 U.S. 464, 495
(2014) (same). The government explains, correctly, that the NDO is narrowly tailored because:
(1) “The scope of speech regulated by the NDO is extremely narrow” since the NDO only
“prohibits Twitter from disclosing the existence or contents of the Warrant” and “is limited to 180
days[,]” Gov’t’s Opp’n at 17–18; and (2) notifying the user or his representatives is untenable
because it would be ineffective in maintaining the confidentiality of its investigation, leading to
the harms described above, see id. at 18–19.
Courts have routinely found that non-disclosure orders satisfy the narrow-tailoring
requirement under strict scrutiny so long as the orders are limited in scope and time, and notifying
the subject of the investigation, or any other authorized person, would not satisfy the government’s
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compelling interest in maintaining the confidentiality of its investigation. For example, in Google
v. United States, the court held the nondisclosure order in that case was narrowly tailored because
“it prohibit[ed] only the disclosure of the existence of the Warrant and of the investigation[,] . . .
[and it was] also limited to a one-year time period.” 443 F. Supp. 3d at 453. The government
satisfied the least-restrictive-means requirement by demonstrating that notifying “the person or
entity to whom the warrant is directed . . . would result in at least one of [§ 2705(b)’s] five
enumerated harms” based on the government’s lengthy ex parte “affidavit setting out . . .why
premature disclosure of the warrant and the existence of the investigation could reasonably lead to
the destruction of or tampering with evidence and intimidation of potential witnesses, thus making
information inaccessible to investigators, and how the disclosure could seriously jeopardize the
ongoing investigation.” Id.; see also in re E-Mail Accounts, 468 F. Supp. 3d at 561–62 (rejecting
a similar First Amendment challenge to a one-year NDO as to a warrant and existence of the
investigation because the government’s ex parte affidavit showed “there was a risk that other
employees, including higher-ups, were involved in the conspiracy[,]” such that notifying the
company of the existence of the warrant could lead to one of the numerated harms under Section
2705(b) and “jeopardize [the government’s] investigation”).
The NDO is narrowly tailored for the same reasons articulated in Google and In re E-mail
Accounts. First, the NDO here is even more narrow in scope and time duration than those at issue
in Google and In re E-mail Accounts: the subject matter Twitter is barred from speaking about is
limited to the Warrant’s contents and existence, and does not impinge at all on the company
speaking to the public about the general subject of the January 6th Investigation. Plus, the NDO
applies for 180 days, which is half the duration of the year-long NDOs at issue in Google and In
re E-Mail Accounts. Second, the NDO presents the least-restrictive means for the government to
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satisfy its compelling interests here because notifying the User or his representatives of the
Warrant’s existence would, for the reasons explained above, likely result in the enumerated harms
outlined in 2705(b). See supra at nn. 4, 6, and associated text; see also Google, 443 F. Supp. 3d
at 453; in re E-Mail Accounts, 468 F. Supp. 3d at 561–62.
Twitter does not dispute that the NDO is narrow in scope and in time. Instead, Twitter
posits that purportedly narrower alternatives could be adopted to preserve the company’s
“[e]ssential First Amendment [r]ights.” Twitter Mem. at 14. Twitter’s suggestions are untenable,
however, and do not come close to satisfying the government’s interests in maintaining
confidentiality about this covert investigative Warrant. First, Twitter’s suggestion that notifying
“just its user” plainly fails because this would likely result in the statutory harms outlined in
§ 2705(b) for the reasons outlined above. See supra at nn. 4, 6, and associated text. Second,
Twitter suggests notifying certain of the User’s representatives, Twitter Mem. at 14–15; Twitter
Reply at 16, but that proposal is preposterous since such the suggested representatives not only
may themselves be witnesses, subjects, or targets of either the January 6th or Classified Documents
Investigation, but also would be under no bar from immediately alerting the User. 8
The Third Circuit’s decision in Matter of Subpoena is instructive here. In challenging an
order preventing disclosure of a grand jury subpoena for the data of a customer’s employees, the
SCA provider that received the grand jury proposed two alternatives, both of which involved
notifying the customer’s bankruptcy trustee. Matter of Subpoena, 947 F.3d at 158. The Third
Circuit categorically rejected the proposals as “untenable” and “impractical” because notifying the
trustee “would be ineffective in maintaining grand jury secrecy” and would “undermine[] the
8
Twitter’s suggestion that the government obtain the responsive data from NARA, Twitter Mem. at 15, is a
nonstarter, both because the Warrant demands more information from Twitter than Twitter provided to NARA about
the Target Account, Feb. 7 Hrg. Tr. at 11:7-13, and because this proposal is moot in light of Twitter’s representation
that it has now fully complied with the Warrant.
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government’s interest in maintaining the confidentiality of an ongoing investigation.” Id. at 158–
59. Similar to Twitter’s naïve suggestion here that, if not the User, the User’s associates should
be trusted with the existence of the Warrant, the Third Circuit was invited to “assess the
trustworthiness of a would-be confidante chosen by a service provider” for disclosure, but
expressly rejected that invitation since neither “courts nor the government can be expected to vet
individuals selected by service providers and determine their risk of subverting an ongoing
investigation.” Id. at 159.
For the same reasons articulated in Matter of Subpoena, evaluating the viability of
Twitter’s proposed alternative disclosure tactics is unnecessary since revealing the Warrant to
either the User or one of his representatives fall far short of meeting the government’s compelling
interests in maintaining the confidentiality of its investigation for all of the ample reasons
presented in support of the NDO. See supra at nn. 4, 6, and associated text. In short, “[s]trict
scrutiny does not demand that sort of prognostication,” Matter of Subpoena, 947 F.3d at 159, so
Twitter’s proposed alternatives lack merit.
For the above reasons, the government has satisfied that the NDO meets the exacting
requirements of strict scrutiny review under the First Amendment.
B. Sanctions
The last dispute between the parties is whether Twitter should be sanctioned for failing to
comply on a timely basis, first with the Warrant and then with the Show Cause Order, the latter of
which required full compliance by February 7 at 5:00 PM. Twitter does not contest—nor could
it—that the company was in violation of the Warrant and the Show Cause Order as of February 7
at 5:01 PM. Instead, the company claims a full defense to any sanctions, contending that Twitter
substantially, if not fully, complied by the Show Cause Order deadline and acted diligently to
finish production in response to the government’s nonstandard requests, while accusing the
29
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government of being dilatory in responding to Twitter’s requests for clarification. See generally
Twitter Notice.
The D.C. Circuit has described three stages in a civil contempt proceeding: “(1) issuance
of an order; (2) following disobedience of that order, issuance of a conditional order finding the
recalcitrant party in contempt and threatening to impose a specified penalty unless the recalcitrant
party purges itself of contempt by complying with prescribed purgation conditions; and (3)
exaction of the threatened penalty if the purgation conditions are not fulfilled.” N.L.R.B. v. Blevins
Popcorn Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981). “At the second stage[,] the recalcitrant party
is put on notice that unless it obeys the court’s decree and purges itself of contempt it will be fined
or face other sanctions.” Id. at 1185. “At the third stage the court determines whether the party
has fulfilled the purgation conditions. If it has, it escapes the threatened penalty; if it has not, the
penalty is imposed.” Id.
Given that both parties agree that Twitter failed timely and fully to comply with the
Warrant and Show Cause Order, which imposed monetary sanctions for failure to do so, stage
three of the proceedings must be considered: whether monetary sanctions should be imposed.
“Once the [movant has] establish[ed] that the [contemnor] has not complied with the order, the
burden shifts to the [contemnor] to justify its noncompliance.” Int’l Painters & Allied Trades
Indus. Pension Fund v. ZAK Architectural Metal & Glass LLC, 736 F. Supp. 2d 35, 39 (D.D.C.
2010). “The contemnor is required to show that it has ‘done all within its power’ to comply with
the court’s order.” Id. at 40. (quoting Pigford v. Veneman, 307 F. Supp. 2d 51, 57 (D.D.C. 2004)).
Twitter asserts a good faith and substantial compliance defense to being assessed civil
sanctions. The D.C. Circuit has left open the ability of a contemnor to assert a defense of good
faith and substantial compliance to avoid a civil sanction. See Food Lion, Inc. v. United Food and
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Commercial Workers, 103 F.3d 1007, 1017 (D.C. Cir. 1997); see also id. at n.16 (collecting three
district court decisions leaving open the availability of a good faith and substantial compliance
defense to avoid civil contempt sanctions); United States v. Latney’s Funeral Home, Inc., 41 F.
Supp. 3d 24, 30 (D.D.C. 2014) (quotation marks omitted) (“Once the court determines that the
movant has made the above three-part showing, the burden shifts to the defendant to justify the
noncompliance by, for example, demonstrating its financial inability to pay the judgment or its
good faith attempts to comply.”). “Assuming that the defense survives in this circuit, however,
the burden of proving good faith and substantial compliance is on the party asserting the
defense[.]” Food Lion, 103 F.3d at 1017 (footnote omitted). “In order to prove good faith
substantial compliance, a party must demonstrate that it took all reasonable steps within its power
to comply with the court’s order.” Id. (quotation marks omitted); see also Latney’s Funeral Home,
41 F. Supp at 30 (quoting Int’l Painters, 736 F.Supp.2d at 40) (“At this stage, conclusory
statements about the financial inability to comply or good faith substantial compliance are
insufficient; instead, [the contemnor] must demonstrate any offered justification ‘categorically and
in detail.’”).
Ultimately, the decision to hold a party in contempt and assess civil sanctions against a
party is left up to the discretion of the district court, based on the record evidence concerning that
party’s efforts to comply with the court order. See In re Fannie Mae Sec. Litig., 552 F.3d 814,
822–23 (D.C. Cir. 2009) (“District judges must have authority to manage their dockets . . . and we
owe deference to their decisions whether and how to enforce the deadlines they impose. Though
we recognize [the contemnor’s] strenuous efforts to comply, the district court found them to be
‘too little too late[.]’ . . . Were we on this record to overturn the district court’s fact-bound
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conclusion that [the contemnor] dragged its feet until the eleventh hour, we would risk
undermining the authority of district courts to enforce the deadlines they impose.”)
Based on the record above, Twitter’s good faith and substantial compliance defense is
insufficient to avoid the sanction imposed because the company’s substantial compliance with the
Show Cause Order deadline (February 7 at 5:00 PM) occurred only after it had already delayed
production since January 27, the original deadline for compliance with the Warrant in an important
ongoing criminal investigation. Twitter repeatedly represented that the company stood ready to
comply promptly with the Warrant soon after in-house counsel was made aware of the Warrant’s
existence on January 25, 2023. See Decl. ¶ 4 (noting that directed Twitter’s
personnel to preserve data available in its production environment associated with the Target
Account on January 25, and “have confirmed that the available data was preserved”); Twitter
Opp’n at 14 (promising “[a]s a continued demonstration of its good faith efforts to comply with
this Court’s orders while its First Amendment interests are resolved, . . . to be willing to produce
the requested data and communications from the Target Account to the Court or the government,
to be held without review until [its Motion] is resolved”); Feb. 7, 2023 Hrg. Tr. at 63:16-19
(Twitter counsel responding to Court’s query whether Twitter could comply with the Warrant by
February 7 at 5:00 PM, that Twitter is “prepared to do that.”). Yet, Twitter waited until after the
Show Cause Order deadline passed on February 7 to raise, for the first time, multiple questions
about the Warrant’s document demands, see Feb. 9, 2023 Hrg. Tr. at 6:1–48:20, including the
company’s inability to produce records responsive to data concerning “associated accounts,” id. at
7:20-8:7 (discussing Warrant, Att. B, ¶ I.B), and cabining date and scope limitations in another
request, id. at 20:12-20 (discussing Warrant, Att. B, ¶ I.H).
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If Twitter had been diligent and serious in its good faith intention to comply with the
Warrant, those questions should have been identified, raised, and resolved with the government
upon receipt of the Warrant on January 19, 2023, or subsequently upon review by in-house counsel
on January 25 and 26, 2023, or even during ongoing conversations with the government through
February 1, 2023. That did not happen. To be sure, Twitter advised the government on February
1, 2023, about “want[ing] to further discuss . . . Attachment B and technical issues [it would] need
to work through in responding once the issue is resolved.” Decl. ¶ 14. Yet, those issues
were not pursued by Twitter and appeared to be dropped in favor of litigating, until raised at the
February 9, 2023, hearing under the Court’s supervision, with sanctions mounting. That context
for raising these issues for the first time does not demonstrate “adequate detailed proof” of good
faith and substantial compliance. See Int’l Painters, 736 F. Supp. 2d at 38; cf. Latney’s Funeral
Home, Inc., 41 F. Supp. 3d at 34-35 (citation omitted) (alteration in original) (“Although
Defendants maintain that they are ‘aggressively working to find monies to pay [their] past due
taxes,’ their good faith alone does not absolve them of the fact that they remain in substantial
violation of the Injunction.”).
Moreover, Twitter represented in its opposition to the government’s Motion, and at the
February 7, 2023 Hearing, that it stood ready promptly to produce responsive records in full, when
required, but plainly this was not so. Twitter’s good faith and substantial defense fails because it
did not attempt to resolve specific questions concerning the Warrant’s document demands with the
government prior to either the February 7 or February 9, 2023, hearings. Cf. Food Lion, 103 F.3d
at 1018 (holding that the contemnor “failed to prove that it complied substantially and in good
faith with the order” because the order “clearly directed [the contemnor] to search all of its
33
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records[,]” and the contemnor “did not seek a clarification of this order”). In short, Twitter was
“too little too late.” In re Fannie Mae Sec. Litig., 552 F.3d at 822 (quotation marks omitted).
As a fallback position, Twitter seeks to excuse the incremental $200,000 penalty assessed
on February 9, citing the fact that the government did not clarify its position regarding the scope
of the Warrant on February 9 until 3:52 PM that day—giving Twitter just 68 minutes to comply
before the final $200,000 penalty was purportedly triggered. Twitter Notice at 4. Twitter’s
argument is rejected for two reasons. For one thing, Twitter incorrectly assumes that the $200,000
fine was triggered at 5:00 PM on February 9. The Show Cause Order did not specify that the
subsequent fine would trigger at 5:00 PM the next day, but merely provided that Twitter “shall be
fined $50,000, a fine amount that shall double every day, for failing to comply with this Order[.]”
Minute Order (Feb. 7, 2023) (emphasis added). That means that Twitter’s additional fine of
$200,000 accrued as soon as 12:00 AM on February 9, not at 5:00 PM. Even if Twitter’s last fine
were to have accrued at 5:00 PM on February 9, however, the government cannot be blamed for
the timeliness of its response on February 9, when Twitter could have resolved all these issues
with the government prior to the original return date for the Warrant on January 27, 2023, or even
during conversations with Twitter’s in-house counsel through February 1, 2023, but Twitter
skipped those opportunities. See Pigford, 307 F. Supp. 2d at 58 (quoting Twelve John Does v.
District of Columbia, 855 F.2d 874, 877 (D.C. Cir. 1988)) (“When a district court determines . . .
that a contemnor has ‘not done all within its power’ to comply with the court’s orders, contempt
may be appropriate even where compliance is difficult.”).
Accordingly, Twitter’s civil sanction for failing to comply with the Warrant and the Show
Cause Order stands at $350,000.
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III. CONCLUSION
For the foregoing reasons, Twitter’s Motion is denied, and the NDO shall remain in effect
for 180 days from issuance, until, at least, July 16, 2023. Additionally, Twitter is assessed a
$350,000 sanction for failing timely and fully to comply with the Show Cause Order, which
sanction is promptly payable to the Clerk of this Court within ten days. Twitter shall file a notice
for filing in the docket of this matter upon payment in full of the sanction.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: March 3, 2023

___
____________________
__ _
__________________________
BERYL A. HOWELL
Chief Judge
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IN THE MATTER OF THE SEARCH OF: Case No. 23-SC-31

PREMISES CONTROLLED BY TWITTER Under Seal
Chief Judge Beryl A. Howell
MEMORANDUM AND ORDER
Twitter seeks a stay pending its appeal (“Motion” or “Mot.”), ECF No. 34, of the Court’s
March 3, 2023 Order Denying Twitter’s Motion to Vacate or Modify Non-Disclosure Order
[“NDO”] and Directing Twitter to Pay Contempt Sanctions (“Order”), ECF No. 29, in some form,
including “an administrative stay of that order[,]” Twitter Reply In Supp. of Its Mot. For Stay
Pending Appeal (“Twitter Reply”) at 10, ECF No. 38. Twitter believes that the Order should be
stayed pending appeal, see Twitter’s Not. of Appeal, ECF No. 34, based on its belief that “once
Twitter pays the $350,000 in contempt fines on March 13 and thereby purges its contempt,” any
appeal will be moot. Mot. at 1–2. This may be so, at least as to the contempt sanction, and may
already be so as to Twitter’s underlying challenge to the execution of the Warrant and NDO at
issue. Mootness will be a matter for the D.C. Circuit to resolve as to all these issues on appeal.
Nonetheless, saving an appeal from mootness is simply not sufficient to satisfy the extraordinary
remedy requested. See Bhd. of Ry. & S.S. Clerks, Freight Handlers, Express & Station Emps. v.
Nat’l Mediation Bd., 374 F.2d 269, 275 (D.C. Cir. 1966) (“A stay pending appeal is always an
extraordinary remedy[.]”); Citizens for Responsibility & Ethics in Washington v. Fed. Election
Comm’n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam) (“CREW”) (describing a stay pending
appeal as “extraordinary relief”). Avoiding mootness is Twitter’s main argument for a stay,
however.
JA391
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A stay request requires a court to “‘weigh competing interests,’” Belize Soc. Dev. Ltd. v.
Gov’t of Belize, 668 F.3d 724, 732 (D.C. Cir. 2012) (quoting Landis v. N. Am. Co., 299 U.S. 248,
244–45 (1936)), and balance the following factors as applied to the specific facts of the case: “(1)
whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies,” Nken v. Holder, 556 U.S. 418, 434 (2009) (quotation marks omitted). The first two
factors are the “most critical” to determining whether a stay is warranted, CREW, 904 F.3d at 1017
(quoting Nken, 556 U.S. at 434), while the third and fourth factors “merge” when the stay applicant
so moves against the government, Nken, 556 U.S. at 435. The party seeking the stay bears the
burden of “mak[ing] out a clear case of hardship or inequity in being required to go forward, if
there is even a fair possibility that the stay for which he prays will work damage to [someone]
else.” Landis, 299 U.S. at 255. The first two factors here weigh heavily against Twitter, with the
irreparable injury boiling down to potential mootness of the contempt sanctions. In this balancing,
Twitter’s Motion must be denied.
First, Twitter is unlikely to succeed on the merits of its appeal. Twitter contends that the
Court likely committed reversible error by (1) requiring Twitter’s compliance with the Warrant
prior to resolving its NDO challenge, and (2) rejecting Twitter’s good-faith and substantial-
compliance defense by ordering Twitter to pay contempt fines for failing to comply with the Show
Cause Order, see Mot. at 6–11, but Twitter is wrong. Even were Twitter’s appeal of the Court’s
contempt order not mooted by compliance with the Warrant, the company’s arguments on the
merits are rejected for the same reasons outlined in the Court’s March 3, 2023 Memorandum
Opinion. See Mem. Op. Re. Ord., ECF No. 30. To summarize, Twitter (1) willfully violated an
JA392
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unambiguous Warrant by conditioning compliance on obtaining a modification of a separate NDO
that would allow disclosure of the Warrant to its account holder—one of the company’s most
prolific and high-profile political users—and thereby provide that account holder the opportunity
to litigate pre-indictment motions; and (2) knowingly failed to take the requisite steps timely to
comply with the Warrant, misrepresented to the Court its ability timely to comply with the Minute
Order (Feb. 7, 2023) (“Show Cause Order”), and, ultimately, delayed the government’s
investigation into the user of the Twitter account at issue. Twitter essentially exploited its position
as a large social media platform to usurp the Court’s role to determine both the validity of the
Warrant’s execution methodology and the need for the NDO—despite the company’s concededly
incomplete information—due to the unique position of the Twitter account user. For these reasons,
Twitter’s counterarguments do not present a “‘fair ground of litigation,’” as it posits in its reply.
Twitter Reply at 2 (quoting Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986)).
Second, Twitter unpersuasively complains about irreparable injury by paying the $350,000
contempt sanction because the Court’s “contempt order [will be] purged and the dispute over it
mooted.” Mot. at 4. To be sure, Twitter has yet to pay the civil sanction required by the Order,
but those funds will not disappear. Should Twitter prevail on its argument that the $350,000
contempt fine was unduly punitive, the Clerk of the Court can always return some or all of those
funds to Twitter. See, e.g., Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1057 (7th Cir.
1998) (“Payment of the sanction does not moot the appeal because the appellate court can fashion
effective relief to the appellant by ordering that the sum paid in satisfaction of the sanction be
returned.”); 13B FED. PRAC. & PROC. JURIS. § 3533.2.2 (“An effective remedy is most clearly
possible if the fine remains in the district court, not yet covered into the Treasury.”). Indeed,
Twitter provides no reason why holding payment of any fines in escrow will moot its challenge to
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the Order regarding sanctions. See Reply at 6 n.1 (“Twitter likewise agrees that holding the money
Twitter pays in escrow will help reduce the risk of mootness.”). Moreover, the cases upon which
Twitter relies to suggest that stays are appropriate to prevent mootness, Mot. at 1–3, are inapposite
because, as the government points out, they concern “1) stays designed to prevent sanctions from
accruing during an appeal by a contemnor who has not complied with the underlying order, and
(2) mootness findings resulting from compliance with the underlying order itself, rather than
mootness resulting from the payment of fully accrued contempt sanctions.” Gov’t’s Opp’n at 12–
13 (emphasis in original ) (citing In re Grand Jury Investigation of Possible Violations of 18 U.S.C.
§ 1956 and 50 U.S.C. § 1705, 2019 WL 2182436, at *5–6 (D.D.C. Apr. 10, 2019) (staying “accrual
of the contempt sanctions” during the pendency of an “expedited appeal”); In re Grand Jury
Subpoena No. 7409, 2018 WL 8334866, at *3–4 (D.D.C. Oct. 5, 2018) (similar); United States v.
Griffin, 816 F.2d 1, 7 n.4 (D.C. Cir. 1987) (appeal of contempt order was mooted after defendant
fully complied with the underlying restitution order); In re Hunt, 754 F.2d 1290, 1293–94 (5th Cir.
1985) (similar)). Even were Twitter correct that payment of the sanctions may moot the pending
appeal of the sanctions order, the company cites no case holding that avoiding mootness is a reason
to grant a stay.
Twitter also raises the specter of an approach to preserve appellate rights of “refus[ing] to
produce anything to the government even after being held in contempt—prolonging any harm to
the government’s investigations and quickly threatening financial ruin for the company as fines
doubled daily.” Twitter Reply at 4 (emphasis in original). This is an argument that may be
persuasive on appeal to avoid a finding of mootness but still does not meet the prerequisites for a
stay.
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Given that Twitter is unlikely to succeed on the merits and will face no irreparable injury
if it promptly pays the contempt sanctions, it is hereby:
ORDERED that Twitter’s Motion for a Stay Pending Appeal, ECF No. 34, is DENIED;
it is further
ORDERED that, upon payment by Twitter of the $350,000 sanction to the Clerk of the
Court for failing to comply with the Show Cause Order, the Clerk of the Court shall not transmit
the fine to the U.S. Department of the Treasury but hold those funds in escrow until further order
from this Court.
SO ORDERED.
Date: March 10, 2023

__________________________
BERYL A. HOWELL
Chief Judge
JA395
FILED UNDER SEAL
CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of March, 2023, I caused the foregoing
to be served by email upon:
James I. Pearce
(202) 840-7000
s/ Ari Holtzblatt
Ari Holtzblatt

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USCA Case #23-5044 Document #2017106 Filed: 09/15/2023 Page 1 of 403

FILED UNDER SEAL

ORAL ARGUMENT SCHEDULED FOR MAY 19, 2023

UNITED STATES COURT OF APPEALS

On Appeal from the United States District Court

GEORGE P. VARGHESE (MASS. BAR

March 31, 2023

Memorandum of Points and Authorities In Support of Motion

Minute Order Granting Motion to Seal and Directing

Government’s Motion for an Order to Show Cause Why

Proposed Order Regarding Government’s Motion for an Order

Email from Gregory Bernstein to Chambers of Judge Howell

Minute Order Issuing Scheduling Order (Sealed)

Twitter’s Opposition to Government’s Motion for an Order to

Exhibit A to Twitter’s Opposition to Government’s Motion for

Exhibit B to Twitter’s Opposition to Government’s Motion for

Government’s Reply in Further Support of Motion for an Order

Transcript of Hearing Before Judge Howell (Sealed)

Minute Order Granting Order to Show Cause (Sealed)

Letter from George P. Varghese to Judge Howell (Sealed)

Transcript of Hearing Before Judge Howell (Sealed)

Twitter’s Notice Regarding Applicability of Sanctions (Sealed)

Government’s Sealed Opposition to Twitter Inc.’s Motion to

Exhibit A to Opposition to Motion to Vacate/Modify Non-

Twitter’s Reply in Support of Its Motion to Vacate or Modify

Exhibit B to Twitter’s Reply in Support of Its Motion to Vacate

Order Denying Twitter’s Motion to Vacate or Modify Non-

Memorandum Opinion Regarding Order of the District Court

Memorandum and Order Denying Twitter’s Motion for a Stay

UNITED STATES DISTRICT COURT

IN THE MATTER OF THE SEARCH OF:

“Warrant”), and to Twitter Inc. (“PROVIDER”), an electronic communication service provider

A, (“TARGET ACCOUNT(S)”) pursuant to 18 U.S.C. § 3101(a).

investigation, as defined in 18 U.S.C. § 2705(b).

or subscriber of the TARGET ACCOUNT(S) would seriously jeopardize the ongoing

interest exists to justify the requested sealing.

1. IT IS THEREFORE ORDERED that, pursuant to 18 U.S.C. § 2705(b),

later modified by the Court.

2. IT IS FURTHER ORDERED that the application is hereby GRANTED, and that

Date: January 17, 2023 _________________________

cc: GREGORY BERNSTEIN

From: Howell Chambers <[email protected]>

Notice of Electronic Filing

UNITED STATES DISTRICT COURT

IN THE MATTER OF THE SEARCH OF:

INFORMATION THAT IS STORED AT Case No. 23-SC-31

GOVERNMENT’S MOTION FOR AN ORDER TO SHOW CAUSE

the accompanying Order, and any related materials under seal.

Warrant within 10 days of the Warrant’s issuance. ECF No. 4, Attachment B, ¶ 5.

Warrant and NDO through the site.

indefiniteness and interference Twitter seeks.

By: /s/ Mary L. Dohrmann

UNITED STATES DISTRICT COURT

IN THE MATTER OF THE SEARCH OF:

INFORMATION THAT IS STORED AT Case No. 23-SC-31

record herein, it is hereby

GRANTED and a hearing shall be held forthwith; and it is further

until otherwise ordered by the Court.

cc: Mary L. Dohrmann

From: GDB (JSPT) <[email protected]>

Government’s proposed briefing schedule:

Order to show cause briefing schedule

NDO briefing schedule