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Jack Smith's "Flight Risk" Deception
After the special counsel claimed in a secret court filing that Donald Trump was a flight risk, Twitter fought back. Then Smith insisted it was just a big mistake.
A few weeks after his appointment as special counsel to take over the Justice Department’s existing investigations into Donald Trump on two criminal matters, Jack Smith carefully plotted his first move.
Get Trump’s DMs.
For non-Twitter users, DM is short for “direct messages.” But that’s not all Smith had in his crosshairs. According to a recently unsealed search warrant served on Twitter earlier this year, the longtime DOJ apparatchik also wanted tweets that the former president drafted, deleted, liked, or retweeted.
Certain that evidence of criminal activity existed deep in the bowels of Trump’s long-dormant Twitter file, Smith further sought the identity of accounts the former president “followed, unfollowed, muted, unmuted, blocked or unblocked, and all users who have followed, unfollowed, muted, unmuted, blocked or unblocked the subject account.” The social media behemoth, at the time transitioning to its new owner, Elon Musk, also would be forced to disclose any purchases the @realDonaldTrump account made as well as associated credit card numbers and billing records.
And that wasn’t all Smith wanted. To ensure Trump didn’t learn of the search warrant and attempt to invoke executive privilege to protect his records from the prying eyes of Joe Biden’s Justice Department, Smith applied for a nondisclosure order. Twitter, if a judge approved both the warrant and the nondisclosure, would be prevented from notifying the former president of the warrant for 180 days.
Smith, of course, got his wish. Beryl Howell, the former chief judge of the U.S. District Court for the District of Columbia, signed off on the broad search warrant on January 17. The Obama-appointed judge also approved a nondisclosure order under the terms of the Stored Communications Act, the statute Smith relied on to hide the warrant from Trump.
And that’s when Twitter cried foul.
Twitter: No, Donald Trump is Not a Flight Risk
In a motion asking to vacate or modify the nondisclosure order, Twitter made a number of arguments related to Trump’s First Amendment rights and the novel nature of the case. “[The] issues presented by the government's demand for private presidential communications without notice are weighty and entirely without legal precedent. These executive privilege issues are distinct from issues presented in a typical search warrant,” Twitter’s legal counsel explained in a February 6 filing.
But one claim really irked Twitter: the suggestion that Donald Trump was a flight risk.
The Stored Communications Act requires the government to meet one of five criteria before seeking a nondisclosure order that would prevent a provider from notifying a customer about a search warrant: one is fear the target will flee prosecution—a claim Jack Smith’s office proposed in its application for the nondisclosure order.
And, it appears, a claim Smith later explained he made in error. Which is impossible to believe considering the flight risk threat was discussed by his lawyers during private conversations and at least one sealed court hearings.
In a phone call with Smith’s office on January 31, Twitter’s senior counsel “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.” Counsel further told Greg Bernstein, one of Smith’s prosecutors, “that it seemed very unlikely that the former President presents a risk of flight because of a warrant for his Twitter data.” (The name of Twitter’s senior counsel at the time is redacted in court documents.)
During a February hearing before Judge Howell, the flight risk matter was discussed on numerous occasions by the judge and lawyers representing Twitter. Howell asked Bernstein to directly respond “to Twitter's comment that there is no reason to believe notification would suddenly cause Trump or potential confederates to destroy evidence, intimidate witnesses, or to flee prosecution (emphasis added).” Bernstein stated they would address those concerns in another sealed motion.
Howell herself said she reviewed her own nondisclosure order “to see, is that language just as specific as that, and it is”—meaning the language in her order specifically determined Trump was a flight risk and therefore he should not know about the warrant. She continued: “It doesn't have to be. Under [the nondisclosure statute], it's not just by the account holder, it's by any other person who might flee, might obstruct. And this NDO was written fairly narrowly, to say the least.”
Howell, once again, reiterated the fact the NDO declared Trump as a flight risk. And Smith’s lawyers, once again, did not object to her reading of their proposed order.
Howell further challenged Twitter’s request to remove the flight risk statement from the NDO. “Your modification was to take out of the NDO ‘potential risk of flight by the President,’ although he does have properties overseas that would be probative,” Howell said.
When Twitter pressed the matter, Howell suggested the company was trying to get in Trump’s good graces. “Is it because the CEO wants to cozy up with the former President, and that's why you are here?” Howell sneered at Twitter’s legal team. “No, Your Honor,” George Varghese, one of Twitter’s retained lawyers, replied. “In this case, one of the arguments was flee from prosecution. As this Court has already noted, the former President of the United States, who has announced that he is rerunning for President, is not at flight from prosecution. Presumably, with his security detail, he is not fleeing.”
But it appears that Twitter at least partially got their way. In her March 3 order denying Twitter’s motion to vacate the NDO and impose a $350,000 fine for allegedly delaying fulfillment of the subpoena—another falsehood as I explained here—Howell disclosed in a footnote that the NDO accidentally stated Trump was a flight risk. “By contrast to the Application for the NDO, the NDO itself also offered as grounds for nondisclosure the basis that the user of the Target Account would ‘flee from prosecution.’ The government has since explained that justification to the NDO was erroneously included.”
A subsequent appellate court decision upholding the search warrant and NDO also revealed Smith’s deception: “The district court also found reason to believe that the former President would ‘flee from prosecution.’ The government later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application. The district court did not rely on risk of flight in its ultimate analysis.”
That may be true since Howell completely ignored the matter, with the exception of a footnote, in her March order despite the fact Twitter made the “flight risk” excuse a major point of contention with Smith’s office. And since Smith’s application for the NDO remains under seal, the public cannot see exactly how it was presented to Judge Howell.
Here’s what likely happened. Smith cited Trump’s risk of flight in both the application and proposed order sent to Howell. (Government motions seeking any court order often include a proposed order ready for the judge to sign.) Howell, who has issued unprecedented rulings against Trump in both the classified documents case and January 6 investigation, probably didn’t even read the text of either the application or proposed order before signing it.
If it targeted Trump, that’s all she needed to know.
It wasn’t until Twitter busted Smith and Howell for claiming Trump would flee the country if he found out about the warrant that both offices retracted the claim. Howell actually backtracked on her own order during the February 7 hearing. When Twitter’s lawyer again insisted that the ‘risk of flight for a former President of the United States doesn't make a lot of sense,” Howell confessed, “I would agree with that.”
Not that any of it matters. Smith will face no sanction for misleading the court. The court will face no sanction for filing an NDO against the former president of the United States partially based on Judge Howell’s belief he is a flight risk.
And these same deceptive villains now have all of Trump’s Twitter records in their dirty little hands.