X is fighting the Department of Justice after it apparently banned the social media platform from alerting two FBI whistleblowers that the feds seized data from their online accounts, documents unsealed in the D.C. federal appeals court on Wednesday show.
X argues that the process for obtaining “nondisclosure orders” is rife for abuse. Prosecutors apparently convinced a D.C. judge that the FBI agents — who were suspended after making allegations that suggested politicization in the Biden FBI — were likely to flee the country or intimidate witnesses if they knew the feds were running an investigation that included subpoenaing their X data. Prosecutors didn’t have to explain their reasons for reaching that conclusion to anyone but a judge, making it impossible to contest.
The claims that prosecutors employ vague but heated language about serious risks to a judge, with no opportunity for pushback by opposing lawyers, mirrors criticism of FISA courts, which often readily authorize wiretaps — including one that targeted former Trump advisor Carter Page and which relied on evidence that was falsified by an FBI agent.
X, owned by Elon Musk, suggested that blocking the company from telling users about the conduct could amount to a free speech restriction. Matthew Graves, the Biden-appointed U.S. Attorney for the District of Columbia, is vigorously defending the practice in the appeal, which was secret until last week.
X developed concerns about whether prosecutors routinely inflate the need for “nondisclosure orders” after special counsel Jack Smith subpoenaed data involving Donald Trump and barred X from informing him of it — even though it seemed unlikely that Trump learning about the warrant would have jeopardized the investigation, since far from being secret, the Smith investigation into Trump was one of the most famous investigations in the world. X said that Trump not knowing about the subpoena deprived him of the ability to challenge it on legal grounds such as presidential immunity, but it lost in the courts.
The company is now taking another crack at the apple after it was ordered to turn over data about two other users and not to tell them. X lost again in the lower court. The secrecy was lifted in June 2024, making the immediate issue mostly moot, but X appealed in order to set a precedent for future cases.
Details about the X users targeted — and why secrecy was important — are redacted in the unsealed court filings. But Kyle Seraphin, an FBI agent who was suspended after blowing the whistle on alleged misconduct, said he was notified in June that his X account was targeted, and that the case appears to be about him and another suspended FBI employee.
“I found out this evening that X Corp, under the direction of Elon Musk, has been vigorously defending the First Amendment and contesting the process used by the DOJ to pull privately held records without any allegation or information said records are substantiated by a federal crime. This is an unsung battle for free speech, and X and Musk are taking it on without any fanfare,” he told The Daily Wire.
He said the FBI “is looking to settle a score with me over my whistleblower activities” and that he “received notice that the FBI had obtained my X account records in June of 2024 after the seal was lifted.”
Prosecutors obtained a nondisclosure order by convincing the judge that there were “reasonable grounds to believe that disclosure of such subpoenas will result in flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation” — a remarkable contention if the targets are FBI agents who have not been charged with any crime.
X argued that “there is nothing publicly known about the two users that would support the conclusion that either of them is likely to flee prosecution, tamper with evidence, intimidate potential witnesses, or otherwise seriously jeopardize any investigation.” But the U.S. Court for the District of Columbia was apparently persuaded based on evidence or arguments that prosecutors made to the judge in secret.
Graves, the U.S. Attorney for the District of Columbia, wrote to the appeals court that they later withdrew their contention that the users were flight risks.
X argued that like in the Trump case, the secrecy of grand jury proceedings didn’t seem to apply “because the investigation of at least one of the targeted users is already known to the public.” Seraphin has been vocal about his conflict with the FBI.
Musk’s company said that the evidence for why a nondisclosure order was necessary should be shared on a confidential basis with its attorneys only — saying it was unwarranted to suggest that its attorneys, as “officers of the court,” could not keep a secret or had an interest in spoiling an investigation.
The key legal issue in the case is whether the federal government can rely on “omnibus” nondisclosure orders that cover a range of targets or platforms, instead of arguing for each individually. X said in the case of omnibus nondisclosure orders, prosecutors often asked judges to gag recipients before specific subpoenas had even been written, making it impossible that they had shown that such an order was necessary for each one.
Seraphin is one of several FBI agents who say they were suspended after calling attention to cases of the Biden administration allegedly using the FBI for political purposes. He blew the whistle on the FBI targeting traditional Catholics as potential “domestic extremists,” based on information from a left-wing group. The FBI later apologized.
Seraphin also played a role in calling attention to anomalies regarding the alleged pipe bomb that was found outside the Democratic National Committee on January 6, 2021. He told The Daily Wire that the FBI used subway card data to identify a person of interest, who turned out to be a retired military official. He said he was assigned to stake out the person’s home, but was blocked from interviewing him, and that the bureau soon pulled him off the assignment to monitor a flood of tips about minor participation in the riot.
