Trump might influence Elon Musk's covert fight with the DOJ
Musk's X Corp. has raised the First Amendment in a covert legal battle against a prevalent strategy employed in criminal investigations.
TroibNews 
For nearly a year, Elon Musk's X Corp. has been engaged in a covert legal struggle aiming to challenge a significant tactic increasingly utilized by the Justice Department: legal gag orders that prohibit social media companies from notifying users when prosecutors seek access to their accounts.
The battle over these "nondisclosure orders" has not been favorable for the company, highlighted by a failed attempt to safeguard President-elect Donald Trump’s account from special counsel Jack Smith's scrutiny. However, Musk is now in a position of considerable influence as an advisor to Trump, who is poised to take control of the Justice Department and intends to profoundly alter its operations. By January 2025, the individual responsible for X's policies might be assisting Trump in directing the DOJ.
Should Musk's efforts lead to a modification in the DOJ's stance on nondisclosure orders, the implications could be extensive. Prosecutors regard these orders as essential tools to prevent criminal suspects from destroying evidence, intimidating witnesses, or evading justice. Meanwhile, social media companies that oppose them, bolstered by a bipartisan coalition in Washington, argue that they are overused, infringing on the companies' First Amendment rights to communicate with users. These companies also contend that prosecutors often maintain these gag orders for excessively long periods without appropriate judicial review.
Although the Supreme Court opted not to hear X's challenge concerning nondisclosure orders related to Trump's account, the company has clandestinely revived its legal fight concerning two former FBI officials suspected of leaking information related to the FBI’s investigation of conservative media organization Project Veritas. Both individuals deny any wrongdoing.
The specifics of X’s legal battle, which has unfolded in confidential court filings throughout 2024, have not been previously disclosed. Due to the confidentiality surrounding grand jury proceedings, neither individual was aware of the extent of X's advocacy on their behalf. X's efforts will resume Tuesday morning, with the D.C. Circuit Court of Appeals set to hear oral arguments in a federal courthouse in Washington, D.C.
X became involved with the case of the former FBI officials — Garret O’Boyle and Kyle Seraphin — following the issuance of a grand jury subpoena to the company on January 5, 2024. This subpoena demanded detailed records related to both men's X accounts and was accompanied by a nondisclosure order that prohibited the company from alerting them to the request. In response, X swiftly went to court, seeking to nullify the order and inform O’Boyle and Seraphin about the subpoena.
While judges have unsealed certain aspects of the dispute between X and the Justice Department, the names of the individuals and the specifics of their case remain under court-imposed confidentiality. Using information from unsealed filings and sources familiar with the case, PMG has confirmed that the situation involves O’Boyle and Seraphin.
The legal battle for O’Boyle and Seraphin gained momentum after they became well-known figures among conservatives due to their public allegations of political bias within the Justice Department and FBI. They expressed some of their concerns to congressional Republicans, who labeled them whistleblowers resisting pressure from the Biden administration. When X initiated its challenge to the nondisclosure order, the company contended that based on public knowledge concerning the two men, the grand jury subpoena might have been "retaliatory."
Judge James Boasberg, Chief U.S. District Judge of Washington, D.C., dismissed X's arguments, concluding that prosecutors had adequately demonstrated that informing O’Boyle or Seraphin about the subpoena could compromise the investigation. Subsequently, Seraphin publicly accused the DOJ of targeting him for retaliatory reasons.
Despite the case's political implications, X and its prominent legal team from WilmerHale have positioned the dispute within a broader First Amendment discussion that transcends partisan boundaries: whether the government should have the power to compel social media companies to relinquish users’ information without allowing those users an opportunity to contest such actions.
“The DOJ and FBI's attempt to regulate free speech is something I have been vocal about, including in whistleblower disclosures to several members of Congress,” Seraphin stated to PMG. “I hope those who have engaged in this behavior are appropriately investigated and charged with their malfeasance.”
Nondisclosure orders are not unprecedented; prosecutors have long employed them when issuing subpoenas to companies, such as financial institutions, holding customer records relevant to criminal investigations. However, the issue has gained renewed importance in the social media era, as investigators increasingly seek access to suspects’ private messages and account data.
There is consensus on the authority of prosecutors to utilize subpoenas when there’s an adequate investigative basis, and that sometimes the targets should not be informed about ongoing investigations. Nonetheless, lawmakers and civil liberties advocates raise concerns about the frequency with which prosecutors and courts impose prohibitions on alerting users about subpoenas, occasionally for extended durations.
These arguments have largely gone unheard in recent years, with the incoming Trump administration now serving as a wild card.
Trump has personal stakes in opposing nondisclosure orders, especially since the special counsel who brought two cases against him employed the same method to acquire data from @realdonaldtrump in early 2023. Federal judges sharply declined X Corp.'s efforts to provide Trump with advance notice, and a judge held the company in contempt for its delayed response. During that time, Washington, D.C.’s former Chief U.S. District Judge Beryl Howell chastised the company’s attorneys and implied that X’s involvement was motivated by Musk’s desire to align with Trump.
The attorneys disputed this claim, explaining that X receives “thousands of subpoenas, court orders, and warrants” for user information annually. They cited public data indicating that other major telecommunications providers encounter similar request volumes.
“Many of these requests for user information are covered by nondisclosure orders that block providers from speaking about the requests until they expire months or years later,” X’s attorneys noted in their court submissions. “These orders may impede users’ ability to protect their constitutional and common-law privileges.”
The Supreme Court ultimately declined to hear X's challenge stemming from the Trump case.
However, the issue remains unresolved. Other technology companies have voiced their concerns regarding the increasing ease and frequency with which prosecutors obtain customer data without prior notification. The extensive use of nondisclosure orders has also drawn bipartisan scrutiny in Congress. The NDO Fairness Act, designed to establish strict time limits on nondisclosure orders and permit more substantial challenges by tech companies, passed the House unanimously in 2023. A corresponding bill in the Senate is co-sponsored by Sen. Mike Lee, a potential candidate for Trump’s attorney general, and Sen. Chris Coons, a close associate of President Joe Biden.
Musk’s close relationship with the president-elect could escalate the movement for policy reform on this issue.
Some federal judges overseeing recent disputes have expressed skepticism regarding X Corp.'s claims of standing firm on First Amendment tenets. It may be significant that X has chosen to engage in a fight concerning subpoenas directed at individuals supported by the right.
Nevertheless, some experts assert that social media companies view this challenge as more than mere political opportunism.
“Internet companies were born with this libertarian streak against the secrecy and volume of government legal process,” explained Al Gidari, a specialist in privacy law and electronic surveillance. “Call it a cultural aversion to government interference in online activities of users, but from the earliest days of the internet, providers sought to be as transparent as legally possible.”
X’s involvement in the case of the former FBI officials traces back nearly two years to controversial testimony they provided to Congress.
In February 2023, Seraphin testified to congressional Republicans about allegations that the FBI had classified some Catholics as potential domestic terrorists, which stemmed from a controversial memo that the bureau quickly retracted. Although a Justice Department inspector general later determined that the memo was isolated and not fueled by “malicious intent,” the incident necessitated a public repudiation from the FBI and triggered extensive inquiries from congressional Republicans.
In May 2023, O’Boyle also provided testimony regarding perceived politicization within the Justice Department. His security clearance had been revoked due to concerns within the FBI that he was involved in leaking information to Project Veritas, related to a DOJ investigation into efforts to obtain the personal diary of Biden’s granddaughter, Ashley. Prosecutors suspected that Seraphin may also have been involved in this leak.
On January 5, 2024, prosecutors issued a federal grand jury subpoena for the X account data of the two men, suggesting that they were considering criminal charges for the leak. A federal magistrate judge authorized the Justice Department's nondisclosure order.
X contested the subpoena a month later, arguing in court documents that based on publicly available information about the two men’s congressional discussions, the subpoena could have been “retaliatory.”
In April 2024, Boasberg ruled in favor of the Justice Department, affirming the constitutional validity of the nondisclosure order while citing significant concerns that revealing the subpoena to O’Boyle and Seraphin might hinder the leak investigation.
Ultimately, X complied with Boasberg's order and submitted the account data, yet it appealed the decision as part of its overarching fight against nondisclosure orders, aiming to overturn the practice on First Amendment grounds.
“Nondisclosure orders are contrary to X’s commitment to notify users about government requests for their account information,” the company’s lawyers stated in an 81-page brief to the D.C. Circuit in May. “X therefore … challenges nondisclosure orders where it has reason to believe they may be improper or unfounded.”
After receiving the account data, prosecutors agreed to lift the nondisclosure order, allowing X to promptly inform O’Boyle and Seraphin about the grand jury subpoena. The Justice Department also communicated to O’Boyle that it had subpoenaed X for information relevant to its criminal inquiry.
“As of today, June 13, 2024, our office is not investigating your client and is not seeking criminal charges as to your client,” the prosecutors wrote to O'Boyle from the U.S. Attorney's Office in Washington, D.C. “However, this letter is not an announcement of any findings, factual or legal.”
It remains unclear whether the grand jury investigation that led to the subpoena has concluded, although X suspects it has based on various cues in prosecutors' submissions.
Camille Lefevre for TROIB News
The battle over these "nondisclosure orders" has not been favorable for the company, highlighted by a failed attempt to safeguard President-elect Donald Trump’s account from special counsel Jack Smith's scrutiny. However, Musk is now in a position of considerable influence as an advisor to Trump, who is poised to take control of the Justice Department and intends to profoundly alter its operations. By January 2025, the individual responsible for X's policies might be assisting Trump in directing the DOJ.
Should Musk's efforts lead to a modification in the DOJ's stance on nondisclosure orders, the implications could be extensive. Prosecutors regard these orders as essential tools to prevent criminal suspects from destroying evidence, intimidating witnesses, or evading justice. Meanwhile, social media companies that oppose them, bolstered by a bipartisan coalition in Washington, argue that they are overused, infringing on the companies' First Amendment rights to communicate with users. These companies also contend that prosecutors often maintain these gag orders for excessively long periods without appropriate judicial review.
Although the Supreme Court opted not to hear X's challenge concerning nondisclosure orders related to Trump's account, the company has clandestinely revived its legal fight concerning two former FBI officials suspected of leaking information related to the FBI’s investigation of conservative media organization Project Veritas. Both individuals deny any wrongdoing.
The specifics of X’s legal battle, which has unfolded in confidential court filings throughout 2024, have not been previously disclosed. Due to the confidentiality surrounding grand jury proceedings, neither individual was aware of the extent of X's advocacy on their behalf. X's efforts will resume Tuesday morning, with the D.C. Circuit Court of Appeals set to hear oral arguments in a federal courthouse in Washington, D.C.
X became involved with the case of the former FBI officials — Garret O’Boyle and Kyle Seraphin — following the issuance of a grand jury subpoena to the company on January 5, 2024. This subpoena demanded detailed records related to both men's X accounts and was accompanied by a nondisclosure order that prohibited the company from alerting them to the request. In response, X swiftly went to court, seeking to nullify the order and inform O’Boyle and Seraphin about the subpoena.
While judges have unsealed certain aspects of the dispute between X and the Justice Department, the names of the individuals and the specifics of their case remain under court-imposed confidentiality. Using information from unsealed filings and sources familiar with the case, PMG has confirmed that the situation involves O’Boyle and Seraphin.
The legal battle for O’Boyle and Seraphin gained momentum after they became well-known figures among conservatives due to their public allegations of political bias within the Justice Department and FBI. They expressed some of their concerns to congressional Republicans, who labeled them whistleblowers resisting pressure from the Biden administration. When X initiated its challenge to the nondisclosure order, the company contended that based on public knowledge concerning the two men, the grand jury subpoena might have been "retaliatory."
Judge James Boasberg, Chief U.S. District Judge of Washington, D.C., dismissed X's arguments, concluding that prosecutors had adequately demonstrated that informing O’Boyle or Seraphin about the subpoena could compromise the investigation. Subsequently, Seraphin publicly accused the DOJ of targeting him for retaliatory reasons.
Despite the case's political implications, X and its prominent legal team from WilmerHale have positioned the dispute within a broader First Amendment discussion that transcends partisan boundaries: whether the government should have the power to compel social media companies to relinquish users’ information without allowing those users an opportunity to contest such actions.
“The DOJ and FBI's attempt to regulate free speech is something I have been vocal about, including in whistleblower disclosures to several members of Congress,” Seraphin stated to PMG. “I hope those who have engaged in this behavior are appropriately investigated and charged with their malfeasance.”
Nondisclosure orders are not unprecedented; prosecutors have long employed them when issuing subpoenas to companies, such as financial institutions, holding customer records relevant to criminal investigations. However, the issue has gained renewed importance in the social media era, as investigators increasingly seek access to suspects’ private messages and account data.
There is consensus on the authority of prosecutors to utilize subpoenas when there’s an adequate investigative basis, and that sometimes the targets should not be informed about ongoing investigations. Nonetheless, lawmakers and civil liberties advocates raise concerns about the frequency with which prosecutors and courts impose prohibitions on alerting users about subpoenas, occasionally for extended durations.
These arguments have largely gone unheard in recent years, with the incoming Trump administration now serving as a wild card.
Trump has personal stakes in opposing nondisclosure orders, especially since the special counsel who brought two cases against him employed the same method to acquire data from @realdonaldtrump in early 2023. Federal judges sharply declined X Corp.'s efforts to provide Trump with advance notice, and a judge held the company in contempt for its delayed response. During that time, Washington, D.C.’s former Chief U.S. District Judge Beryl Howell chastised the company’s attorneys and implied that X’s involvement was motivated by Musk’s desire to align with Trump.
The attorneys disputed this claim, explaining that X receives “thousands of subpoenas, court orders, and warrants” for user information annually. They cited public data indicating that other major telecommunications providers encounter similar request volumes.
“Many of these requests for user information are covered by nondisclosure orders that block providers from speaking about the requests until they expire months or years later,” X’s attorneys noted in their court submissions. “These orders may impede users’ ability to protect their constitutional and common-law privileges.”
The Supreme Court ultimately declined to hear X's challenge stemming from the Trump case.
However, the issue remains unresolved. Other technology companies have voiced their concerns regarding the increasing ease and frequency with which prosecutors obtain customer data without prior notification. The extensive use of nondisclosure orders has also drawn bipartisan scrutiny in Congress. The NDO Fairness Act, designed to establish strict time limits on nondisclosure orders and permit more substantial challenges by tech companies, passed the House unanimously in 2023. A corresponding bill in the Senate is co-sponsored by Sen. Mike Lee, a potential candidate for Trump’s attorney general, and Sen. Chris Coons, a close associate of President Joe Biden.
Musk’s close relationship with the president-elect could escalate the movement for policy reform on this issue.
Some federal judges overseeing recent disputes have expressed skepticism regarding X Corp.'s claims of standing firm on First Amendment tenets. It may be significant that X has chosen to engage in a fight concerning subpoenas directed at individuals supported by the right.
Nevertheless, some experts assert that social media companies view this challenge as more than mere political opportunism.
“Internet companies were born with this libertarian streak against the secrecy and volume of government legal process,” explained Al Gidari, a specialist in privacy law and electronic surveillance. “Call it a cultural aversion to government interference in online activities of users, but from the earliest days of the internet, providers sought to be as transparent as legally possible.”
X’s involvement in the case of the former FBI officials traces back nearly two years to controversial testimony they provided to Congress.
In February 2023, Seraphin testified to congressional Republicans about allegations that the FBI had classified some Catholics as potential domestic terrorists, which stemmed from a controversial memo that the bureau quickly retracted. Although a Justice Department inspector general later determined that the memo was isolated and not fueled by “malicious intent,” the incident necessitated a public repudiation from the FBI and triggered extensive inquiries from congressional Republicans.
In May 2023, O’Boyle also provided testimony regarding perceived politicization within the Justice Department. His security clearance had been revoked due to concerns within the FBI that he was involved in leaking information to Project Veritas, related to a DOJ investigation into efforts to obtain the personal diary of Biden’s granddaughter, Ashley. Prosecutors suspected that Seraphin may also have been involved in this leak.
On January 5, 2024, prosecutors issued a federal grand jury subpoena for the X account data of the two men, suggesting that they were considering criminal charges for the leak. A federal magistrate judge authorized the Justice Department's nondisclosure order.
X contested the subpoena a month later, arguing in court documents that based on publicly available information about the two men’s congressional discussions, the subpoena could have been “retaliatory.”
In April 2024, Boasberg ruled in favor of the Justice Department, affirming the constitutional validity of the nondisclosure order while citing significant concerns that revealing the subpoena to O’Boyle and Seraphin might hinder the leak investigation.
Ultimately, X complied with Boasberg's order and submitted the account data, yet it appealed the decision as part of its overarching fight against nondisclosure orders, aiming to overturn the practice on First Amendment grounds.
“Nondisclosure orders are contrary to X’s commitment to notify users about government requests for their account information,” the company’s lawyers stated in an 81-page brief to the D.C. Circuit in May. “X therefore … challenges nondisclosure orders where it has reason to believe they may be improper or unfounded.”
After receiving the account data, prosecutors agreed to lift the nondisclosure order, allowing X to promptly inform O’Boyle and Seraphin about the grand jury subpoena. The Justice Department also communicated to O’Boyle that it had subpoenaed X for information relevant to its criminal inquiry.
“As of today, June 13, 2024, our office is not investigating your client and is not seeking criminal charges as to your client,” the prosecutors wrote to O'Boyle from the U.S. Attorney's Office in Washington, D.C. “However, this letter is not an announcement of any findings, factual or legal.”
It remains unclear whether the grand jury investigation that led to the subpoena has concluded, although X suspects it has based on various cues in prosecutors' submissions.
Camille Lefevre for TROIB News
