Notice & Comment

D.C. Circuit Review – Reviewed: Executive Privilege & Election Law

During the week of January 15, the D.C. Circuit issued two opinions.

In In re: Search of Information Stored at Twitter, Inc., the D.C. Circuit denied a petition for rehearing en banc filed by Twitter (now known as X). In November 2022, Special Counsel Jack Smith was appointed to investigate President Trump’s efforts to overturn the results of the 2020 presidential election. As a part of that investigation, Smith obtained a search warrant for Trump’s Twitter account and a nondisclosure order that prevented Twitter from informing Trump about the search. Twitter argued that the nondisclosure order violated the First Amendment and the Stored Communications Act, but the district court rejected those arguments, and the D.C. Circuit affirmed.

Judge Rao, joined by Judges Henderson, Katsas, and Walker, issued a statement respecting the denial of rehearing en banc to highlight the executive-privilege issues implicated by the case. The court acknowledged that the questions of executive privilege weren’t properly before the court because President Trump hadn’t intervened. But Judge Rao argued that the district court should have given Trump an opportunity to invoke executive privilege before his records were disclosed. The failure to do so was unprecedented and directly contravened longstanding principles used to resolve executive-privilege claims.

In End Citizens United PAC v. FEC, the D.C. Circuit affirmed the FEC’s dismissal of two administrative complaints alleging that Rick Scott and the New Republican PAC had violated federal election law. The first complaint alleged that, before Scott declared his run for Senate in April 2018, he had unlawfully used New Republican’s resources to run an informal campaign. The second complaint alleged that Scott and New Republican had unlawfully coordinated on the purchase of two television commercials. The six FEC commissioners split three to three on whether to investigate the complaints further. Because they lacked the four votes necessary to begin an investigation, the FEC dismissed the complaints. The three commissioners who voted against the investigation then issued a statement explaining their reasoning.

Judge Rao, joined by Judge Katsas, held that the FEC’s first dismissal was unreviewable. The D.C. Circuit had previously held that a dismissal was unreviewable if it depended even in part on enforcement discretion. And here, the three commissioners who voted against an investigation had expressly invoked their prosecutorial discretion, discussed the resources an investigation would require, and mentioned the FEC’s “substantial backlog of cases.” The court then held that the FEC’s second dismissal was reviewable but wasn’t contrary to law. The three commissioners who voted against an investigation found no reason to believe that Scott and New Republican had improperly coordinated, and the court saw no reason to disagree.

Judge Pillard agreed with the majority that the FEC’s dismissal of the second complaint wasn’t contrary to law. But she dissented from the majority’s determination that the first complaint was an unreviewable exercise of prosecutorial discretion. In particular, she argued that an invocation of enforcement discretion by less than a majority of the commissioners wasn’t sufficient to prevent the court from reviewing the complaint.

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