By Jack Phillips
Special counsel Jack Smith revealed in recent court documents that he obtained data from former President Donald Trump‘s smartphone, which some experts say could provide a means to challenge the case in court on appeal.
“The phone records may add to the unease of some judges and justices over the fight over presidential immunities and privileges,” Jonathan Turley, a professor who teaches constitutional law at George Washington University, told The Washington Times.
He added that, “however, Smith has the Nixon case to cite for such demands in the investigation of possible criminal acts. What is clear is that the Court may be pushed into a major line-drawing decision over inherent presidential immunities.”
Jamil Jaffer, former associate White House counsel to former President George W. Bush, told the same outlet that the use of President Trump’s cellphone data “raises really hard, complex questions on an unprecedented set of facts.”
But Mike Davis, founder and president of the Article III Project, added that the seizure of his data may have crossed “a red line,” adding that it sets a “destructive precedent for the presidency, as it seriously undermines the president’s ability to get his constitutionally protected, confidential and candid advice from his advisers.”
The Smith team charged the 45th president earlier this year with four counts, claiming that he illegally tried to overturn the 2020 election. President Trump has denied wrongdoing, pleaded not guilty to the charges, and said it’s part of a longstanding witch hunt to denigrate his political chances in 2024.
Earlier this year, in court filings, the special counsel’s team said that federal investigators gained access to the former president’s phone and White House phone records. It’s not clear what exactly they obtained or how much of it.
According to the filing, an individual only described as “Expert 3” had “extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1),” referring to President Trump and another person who was not identified. Expert 3 also “specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6,” it said.
Heavily redacted documents released by the Department of Justice in November, meanwhile, revealed that prosecutors had attempted to gain all information related to President Trump’s Twitter, now X, account, which included who interacted with him, posts, mutes, and direct messages.
Twitter had sought to block the Department of Justice’s attempts in court. But the firm ultimately lost a court battle and handed over data related to the former president’s account, which had been re-instated under new owner Elon Musk.
U.S. District Judge Tanya Chutkan previously set a March 4, 2024, start date for the former president’s 2020 election trial. However, the trial date could be pushed back after President Trump launched appeals asking a court to determine whether he is immune from prosecution, which Mr. Smith later appealed to the U.S. Supreme Court.
Earlier this month, the Supreme Court rejected Mr. Smith’s bid to fast-track a ruling on the immunity question, handing a scheduling win to the former president.
Judge Chutkan has already put the case on hold while President Trump pursues his case that he is immune from prosecution. The judge also has raised the possibility of keeping the March trial date if the case promptly returns to her court.
She earlier rejected the Trump team’s arguments that an ex-president could not be prosecuted over acts that fall within the official duties of the job.
“Former presidents enjoy no special conditions on their federal criminal liability,” Judge Chutkan wrote in a Dec. 1 ruling. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
In a statement on Dec. 22, President Trump stated anew that he was “entitled to presidential immunity” and was looking forward to having his case heard before the appeals court.
His lawyers have for months signaled that they would ultimately ask the Supreme Court to take up the immunity question. But they urged the justices this week to stand down for now, saying there was no reason to rush a decision.
“Importance does not automatically necessitate speed. If anything, the opposite is usually true,“ they wrote. ”Novel, complex, sensitive and historic issues—such as the existence of presidential immunity from criminal prosecution for official acts—call for more careful deliberation, not less.”
The Associated Press contributed to this report.