On October 7, the US Supreme Court rejected an appeal from X — formerly Twitter — concerning, among other issues, the use of “nondisclosure orders” when prosecutors serve search warrants. In this specific case, the prosecutor was special counsel Jack Smith, the target was former president Donald Trump, and the warrant was for Trump’s Twitter account.
Smith received the warrant on January 17, 2023, but even now, more than two years later, the public has only seen redacted versions of the court proceedings around Twitter’s initial refusal to comply with it (the company was fined $350,000) and the nondisclosure order.
Secret court hearings, secret warrants, nondisclosure orders, and continuing secrecy around all those things are evil.
Yes, even if the target is a political figure you may dislike.
Yes, even if making warrants available to the public upon their issuance might make it harder for prosecutors to do their jobs.
If I considered the US Constitution a workable blueprint for a just society, rather than a paper wall that government actors punch through or set on fire whenever its provisions prove inconvenient, I’d support the following change to the Fourth Amendment (my addition in brackets):
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [All such warrants shall be posted to a public-facing website prior to execution, where they shall remain publicly available in perpetuity, and published to the Federal Register within one working day of execution.]”
If the purpose of the “justice system” is indeed justice, the operation of that system must be transparent to the public its agents claim to represent and protect.
Even a fully transparent system wouldn’t necessarily be secure against incompetence, abuse, and corruption.
But power to conduct work allegedly “for the public” in secret guarantees not just more incompetence, abuse, and corruption, but the ability to hide that incompetence, abuse, and corruption.
Nondisclosure orders in particular are unconstitutional on their face: They violate the First Amendment’s prohibition on abridging their targets’ freedom of speech.
That fact Trumps (pun intended) prosecutorial convenience and even investigative efficacy. Neither those targeted by the state, nor the general public, should tolerate the state acting with forcible secrecy against anyone.
Thomas L. Knapp (Twitter:@thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.
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