Elon Musk’s Xitter Stalls a Criminal Investigation, Again

On Friday, DC Chief Judge James Boasberg released a redacted version of a March 29 opinion on another attempt by Xitter to refuse compliance with legal process based on a complaint about a gag order (formally, a non-disclosure order, referred to as an NDO below). Kyle Cheney, who first posted on it and who tends to have a good read on these things, noted that it seems important.

As you recall, Xitter successfully delayed Jack Smith’s access to Trump’s Xitter account for 23 days in January and February of last year (from when then-Chief Judge Beryl Howell approved the warrant on January 17 until when Xitter finally complied on February 9), then spent several more months arguing that it should be able to inform Trump they had provided the information and should not have to pay fines for being in contempt.

This time around, Xitter delayed DOJ’s access to the mere subscriber records — that is, records showing who owns the accounts in question — for two Xitter accounts for over two months (January 25 through March 29 of this year) based on a similar complaint: that before it complied, it should be able to tell the subjects of the criminal investigation about the request.

While (as Cheney noted) there’s no clear tie to Trump, this investigation is focused on public figures of some sort.  We know that because Xitter argued that notifying the targets would not harm the investigation, and then claimed there was nothing publicly known about the targets to suggest informing them would lead to witness intimidation or any of the other bases DOJ provided for delaying notice for a year.

Judge Boasberg debunked Xitter’s claim. There was information in the affidavit, he said, even just “based on what is publicly known about the investigation’s targets,” to show that disclosure might result in witness intimidation. Xitter also complained that the government offered more information to justify its gag after Xitter challenged it, but Boasberg declined to “infer” from that the initial basis was lacking.

And while there’s no reason to believe that those public people have a tie to Trump, Boasberg cited last year’s legal dispute in three places to justify denying Xitter’s demand.

He invoked Yogi Berra (and the government’s filings) to explain why Xitter’s “imagined categorical prohibition on omnibus NDOs” was little different than the arguments it made last year.

On that question, much of X’s argumentation may be characterized by Yogi Berra’s immortal line, “It’s déjà vu all over again.” That is because the company mostly regurgitates the arguments that it made — which both this Court’s predecessor and the D.C. Circuit rejected — just last year in a case involving the same parties. See In re Sealed Case, 77 F. 4th 815, aff’g in the Matter of the Search; see also Redacted Gov’t Mot. at 13 (asserting that X “knows [its arguments] are losing arguments — having just had the D.C. Circuit reject them last year when it challenged a different NDO”); see also id., at 1, 7-8. The NDO at issue in In re Sealed Case accompanied a search warrant directing Twitter to produce information related to former President Trump’s account. See 77 F.4th at 821. Twitter challenged the NDO on much the same grounds as it does here, and the Circuit did not bite.

Boasberg likened Xitter’s glib offer to tell only the subjects of the investigation to Xitter’s similar offer last year to tell only Trump, which the DC Circuit rejected.

The company believes that “[a] less restrictive means of furthering the government’s interests . . . would be to permit X to disclose the Subpoena’s existence to the targeted users, while prohibiting disclosure . . . to anyone else.” Id. at 24. That is akin to asking for the donut minus the hole.

Indeed, the Circuit rejected an analogous alternative in In re Sealed Case. There, the company proposed notifying just Trump–the target of the warrant that the challenged NDO accompanied–of the warrant’s existence. Yet the Circuit considered that alternative a “nonstarter[]” because it “would not have maintained the confidentiality of the criminal investigation and therefore risked jeopardizing it.” In re Sealed Case. 77 F.4th at 831. Nor would it have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure was to avoid tipping off the former President about the warrant’s existence.” Id. at 832. X’s proposal here falls flat for precisely the same reason: permitting it to disclose the subpoena’s existence [redacted] would neither protect the investigation’s confidentiality nor safeguard its integrity. See Redacted Gov’t Mot. at 12 n.4.

[Paragraph redacted]

Notably, last year Xitter at least relied on a purported interest in preserving Executive Privilege. Here, there’s no such claim; just a specious argument that DOJ should have to get individualized NDOs for every subpoena it submits in this investigation, even if all of them ask for no more than basic social media account information. So this is not some protected class, like a member of Congress or staffer.

Perhaps Boasberg’s most interesting invocation of Xitter’s earlier attempt to tamper in the Trump investigation is where, in almost entirely redacted language, he compares the urgency of this investigation with that of Jack Smith’s investigation into, “activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government.”

He spends three (redacted) paragraphs describing the import of the investigation.

To be sure, the Government’s interest in In re Sealed Case “was particularly strong” because of the goal of the investigation at issue: “[T]o ferret out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government . . . and to assess whether that activity crossed lines into criminal culpability.” In re Sealed Case. 77 F4th at 830. The United States does not purport to target election interference in this case. But it submits that its interest are nevertheless heightened here for another reason: [1.5 lines redacted] The Court wholly agrees based on the evidence outlined in the Government’s ex parte briefing. [3 paragraphs redacted]

Whether or not this has a direct tie to Trump, it’s worth noting that Musk met with Trump (on March 2) during the pendency of this fight; last year, Musk met with Jim Jordan twice during Xitter’s challenge to the Trump warrant.

Whatever that three paragraph description was, Boasberg described the type of investigation using a short word — four or maybe five characters. This could be a FARA investigation or a leak investigation, for example, or perhaps he cited code to describe it.

Update: I guess I should explain why I used Musk’s Council of Nicea tweets as my featured image? In this post (linked above), I noted that on the day Xitter started complying with the Trump warrant, Musk posted this tweet:

So I went to Musk’s tweets from the day after Boasberg’s order and noted that he tweeted obliquely about “trac[ing] to source documents.”

If this is a leak investigation, it could be a reference to an attempt to source a leak.


December 11, 2023: Application for omnibus NDO

January 5, 2024: DOJ serves Xitter with subpoena for subscriber information

January 24: Xitter moves to vacate the NDO, review the affidavit, and stay compliance

January 25: Initial deadline for compliance

March 2: Musk meets with Trump in Florida

March 29: Boasberg orders Xitter to comply

April 12: Boasberg released redacted opinion

31 replies
  1. Fraud Guy says:

    So Musk is attempting steganography. I wonder if the next NDO order should also include advising Xitter’s legal counsel that they should not disclose the subpoenas to the owner.

      • Rugger_9 says:

        I recall that post-9/11 there was the creation of the national security letter (NSL) where the government can rifle through all sorts of things like bank accounts on pretty much any ground they could think of. The target was specifically enjoined from being informed about even the existence of the NSL much less anything about the search.

        I’m not sure how a similar search rule would not apply here. I’m also reminded about what a potential witness’ attorney for a case under possible investigation said in the media, pointing out that grand jury subpoenas are so secret that the recipient cannot even say they have gotten one.

        It would seem between NSLs and related subpoena rules, Elno is legally out of luck here. How much can he / Xitter get sanctioned or obstruction?

        • emptywheel says:

          Xitter has long been among the most aggressive in fighting NSLs based on the gag. Those are used more where the crime is more amorphous, like a suspected spy (though FBI switched to using more subpoenas as the paperwork for NSLs got more onerous).

          This subpoena is equivalent to what an NSL would be, limited to subscriber information, but with subpoenas you have to ask for the gag separately.

        • Tech Support says:

          NSL’s existed before 9/11 but were expanded to an unhealthy degree with the passage of the Patriot Act. Eventually there was a court battle that got them nerfed a bit, and then they were dialed back a bit more during one of the Patiot Act re-authorizations. Then after re-authorization they got knocked down again by the courts.

          I’m not sure exactly what you can do with NSLs today but they are no longer the draconian fishing rod they were 20 years ago.

  2. Savage Librarian says:

    My WAG is that Musk’s dot tweet on 2/8/23 may be a reference to Assange.

    Musk retweeted a video by David Sacks, in support of Assange on 2/17/24.

    On your Timeline, that would be between the Initial deadline for compliance (1/25) and Musk’s meeting with Trump in FL (3/2).

  3. Matt Foley says:

    Musk is firing 14,000 Tesla employees.
    Because he’s a billionaire genius job creator. MAGA!

    • Rugger_9 says:

      One of the galling aspects of that was Elno’s statement that (paraphrasing) a housecleaning has to be done every five years or so. Nothing about Elno’s bad decisions. It reminded me of an old Dilbert cartoon where the C-suite types got together for a reorg to bury bones and hide bad decisions. Until Adams went to the dark side, he did have some gems.

  4. David F. Snyder says:

    OT (my excuse: someone here might know): U. Berliner is now gone from NPR, but after causing considerable flak about NPRs moderate reporting, which feeds into a lot of right-wing bullshit. Marcy has said that UB lied or didn’t get his facts straight. Which all makes me suspicious that the sliming of NPR was the whole intention of UB’s actions, originating with, say, Putin/Russia. Sowing doubt about the media, the government (any of the three branches) — “only Trump can fix this (with strong-arm methods)”. It’s just weird to me that Berliner isn’t satisfied with the rightward drift of NPR over the Reagan years through the Bush Jr. years.

    • ExRacerX says:

      “It’s just weird to me that Berliner isn’t satisfied with the rightward drift of NPR over the Reagan years through the Bush Jr. years.”

      I was similarly gobsmacked. Multiple times here at EW, I’ve seen NPR called “Nice, Polite Republicans.” Apparently Berliner was not quite polite enough.

      • Harry Eagar says:

        I would have a hard time detecting republicanism in NPR’s attitude toward 1) climate or 2) sexual identity, which I would contend are its core concerns.

        As for differing views, I am pretty sure Jerry Coyne has not been and will never be interviewed by NPR. Google suggests the one time he was, in 2009, it was a joke piece about naming.

    • RipNoLonger says:

      I’ve seen quite a bit of negative comments about NPR and their various programs recently. While I don’t agree with everything that I hear, I do think they are pretty open in their analyses and invite differing views.

      Not sure that the russo-phils would enjoy the very closed news networks in their favorite country.

    • Rugger_9 says:

      Formerly the blue bird Twitter, but now under Elno, pronounce the X like the Chinese would (‘sh’).

      • Katherine Williams says:

        I like “TwittX” myself. Sounds like Trump is taking legal advice from lawyers rejected by Donald Trump. Perhaps response to subpoenas depends upon his (Musk’s) goal: in this case, mostly delay I suppose.

        • Tracy Lynn says:

          I call it “Twix” like the candy. Can’t bring myself to call “X” or “Xitter,” no matter what Elmo wants.

    • Rayne says:

      What’s odd about the case is the number of Southeast Asian Canadians involved — at least two have northern Indian names, one I think is Sri Lankan. Made me think of the assassination plots uncovered last year, ordered by an Indian government official. I wonder if the plots are still unfolding in spite of Canada and US pressure on India to knock this off.

      Punjabi media noted the Indo-Canadians involved, too, so it’s not just me taking note.


      • SteveBev says:

        A large part of my practice involved clients from Southall in West and Whitechapel and Newham in the East, which are hubs for various south Asian communities in London.

        Your thoughts were mirrored by mine when I first came across this story. Several of the names are consistent with membership of Sikh communities – Chaudhuri, Panesar, Grover, Sidhu, Jalota is a dual Sikh or Hindu name
        But Prasath Paramalingam struck me as a name with a Sri Lankan origin, which is where it is most common. And there are few if any Sikhs in Sri Lanka I understand

        Ali Raza is a Muslim not a Sikh name

        So there are clear cross-cultural connections in this conspiracy

        • Rayne says:

          I did point out there was a Sri Lankan name, yes? There are Malay and Indian persons who also share this name. One thing we can’t tell from name alone is religious+political affinity which you’ll likely agree may be a factor uniting this conspiracy.

          We don’t know yet what their role in the conspiracy was which may further shed light as Ali Raza’s ownership of a jewelry store does. If Raza fenced the gold as I suspect, it makes perfect sense there would be cross cultural connections.

          Surprised about the lack of US media coverage — only WaPo, NYPost, and a few local news outlets picked this up. UK’s DailyFlail unsurprisingly went racist and focused on the one Black American Canadian* charged in their coverage.

          * EDIT – earlier news reports only indicated Durante King-Mclean was arrested in the U.S. without making nationality clear. DOJ’s press release says the perp was from Ontario and in the U.S. unlawfully.

        • SteveBev says:

          You did indeed point out there was a Sri Lankan name.
          Apologies if it offended you that I particularised the name in question.
          The reference you provided to the assassination in Canada referred to the death of a Sikh activist for independent Sikh homeland (Khalistan) within the borders of India. Having provided that context, I thought it might be helpful to point out the other possible Sikh connections.
          I hope I did that in a responsible manner, because we do not have anything like enough information about the nature of the conspiracy, nor if I may say so it’s connection or otherwise with the assassination.

          I think your speculation about Razza role may well be accurate as a jeweller he may well have access to a smelting kiln for the legitimate purposes of melting scrap gold, and thus in a position to disguise the origin of the gold bullion: as was done in the Brinks Matt case in London.

        • Rayne says:

          Someone with a Sri Lankan (or Malaysian) name could be Hindu, and may have an ideological bent toward the Khalistan independence movement if they are anti-Modi/anti-Hindutva, or the opposite if the other conspirators who are of possible Punjabi heritage are anti-separatists — assuming this gun trafficking conspiracy has a religious/political basis.

          What’s important to the U.S. about this is that 1) guns are too easily available for trafficking; 2) ghost guns are involved and we don’t have adequate regulation of them; 3) if this is related to a separatist movement (for or against), this could be influenced by more than one country as part of an effort to destabilize governments; and 4) if this is a conspiracy related to the assassination plots, it’s a foreign policy crisis.

        • xyxyxyxy says:

          It’s a hell of a story and I agree with your points 1 and 2.
          I hope your speculation in points 3 and 4 ends up being too sensationalist.
          Would you think the same if it were Russians, Saudis, Kenyans, Brazilians, Iranians,…?
          AP also carried the story.

        • SteveBev says:

          Hopefully this is all ‘merely’ gangsterism, and there aren’t the separatist political ramifications.
          Unfortunately Sikh/Punjabi gangsterism in Canada and Sikh separatist politics seem to co-mingle to an extent as this brief resume dated September 2023 makes clear


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