By Zachary Stieber
Special counsel Jack Smith has acknowledged an error in a case involving former President Donald Trump, the second time his team has made such an admission in recent weeks.
Mr. Smith and his assistants convinced a federal judge in Washington to not only approve a search warrant for President Trump’s X account, formerly known as Twitter, but to block President Trump from learning about the warrant, according to a ruling unsealed on Aug. 9.
U.S. District Judge Beryl Howell granted both the warrant application and the request for a nondisclosure order, which barred X from disclosing the warrant to any person, including President Trump, an appeals court revealed as it upheld Judge Howell’s orders.
While the orders remain under seal, Judge Howell was quoted by the court as writing that there were “reasonable grounds to believe” that President Trump learning about the warrant would “seriously jeopardize the ongoing investigation” by giving him “an opportunity to destroy evidence, change patterns of behavior, or notify confederates.”
Judge Howell also claimed that President Trump becoming aware of the warrant would lead him to flee, according to the appeals court.
But Mr. Smith’s team would later admit that part of its entry that led to the order was made in error.
“The district court also found reason to believe that the former President would ‘flee from prosecution,'” the appeals court said. “The government later acknowledged, however, that it had ‘errantly included flight from prosecution as a predicate’ in its application” for the non-disclosure order.
The U.S. Department of Justice, lawyers for President Trump, a lawyer representing X, and the company itself, did not respond to requests for comment.
Judge Howell, the appeals court said, did not ultimately rely on the purported flight risk in its “ultimate analysis.”
X wanted to disclose parts of the warrant to President Trump but “such action would not have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure order was to avoid tipping off the former President about the warrant’s existence,” U.S. Circuit Judge Florence Pan, an appointee of President Joe Biden, wrote in the unsealed ruling.
Judge Pan and the rest of a panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld Judge Howell’s order.
Judge Pan was joined by Circuit Judge Michelle Childs, another appointee of President Biden, and Circuit Judge Cornelia Pillard, appointed under President Barack Obama.
President Obama also appointed Judge Howell.
Mr. Smith obtained the warrant in January along with the non-disclosure order, which lasted for 180 days. The activity was part of Mr. Smith’s investigation into President Trump’s effort to investigate the 2020 presidential election. Mr. Smith has since brought charges against the former president, including conspiracy and obstruction.
Mr. Smith’s team previously admitted that it made a false claim to the court, backpedaling from its assertion that it provided all surveillance footage from President Trump’s Mar-a-Lago resort to the former president’s attorneys.
In a July 31 filing, the special counsel’s team said it learned on July 27 that “this footage had not been processed and uploaded to the platform established for the defense to view the subpoenaed footage.”
“The Government’s representation at the July 18 hearing that all surveillance footage the Government had obtained pre-indictment had been produced was therefore incorrect,” prosecutors added.
The Department of Justice did not respond to a request for comment on the admission.
Prosecutors added that with a new production, they now had actually given all of the footage over to President Trump.
President Trump’s lawyers have not yet responded to the filing.
Special Counsel Appointment
Mr. Smith was appointed in November 2022 by Attorney General Merrick Garland, who was appointed by President Biden.
Mr. Garland directed Mr. Smith to oversee two investigations, one of which was the one into attempts to interfere with the transfer of power from President Trump to the next president.
Mr. Smith was also told to oversee a probe into President Trump’s holding documents with classification markings at Mar-a-Lago, as well as President Trump’s alleged efforts to obstruct that probe.
President Trump has also been indicted in the documents probe.
President Trump has said he’s innocent and entered not guilty pleas.
Mr. Garland said he was motivated to act in part because President Trump declared for the 2024 election.
“I have concluded that it is in the public interest to appoint a special counsel,” Mr. Garland said at the time.
Mr. Smith said he was committed to be independent and would “move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”