Thread by @ReeveSwainston

My “Thread from a Fed” concerning the #TwitterFiles Primarily from the work of @mtaibbi This is my first thread. I am very new to this platform as I am sure you can tell, so bear with me. Although much of what I discuss below may concern all social media Co’s,

I am focusing on @Twitter since these revelations are Twitter specific. My opinions are based on my experiences. I am not an "academic legal scholar". But as a practitioner who did the frontline work, I felt compelled to speak to this issue after I read Taibbi's last data dump.

I came away stunned to see "Feds" across the US Gov't (USG), esp'y federal law enforcement agents & agencies who should know better, engaging in direct communications with Twitter when the purpose of these comms was to either remove content or ban users w/o any formal process.

Background:
I am a former US Marine & Ret’d Asst. US Atty (FedProsecutor). I consider myself a free speech fundamentalist & “classical liberal” – if it doesn’t violate 1A, there’s NO justification for suppression of speech. Suppressing a journalists or publications is a red line.

@AlexBerenson comes to mind. When he was taken out by the Covid suppression maniacs, countless Americans (as well as ppl around the world), lost a critical voice who's reasoned analyses were not just well researched, but often also quite prophetic as we all learned over time.

Although so-called “state action” is required for a violation of the US Constitution, when the USG utilizes a private actor (here, Twitter) to do what it cannot, both the private actor & the USG may very well have violated the law opening themselves up to litigation & liability.

I would argue that any time the USG uses Twitter to suppress the speech of any citizen or journalist, a rebuttable presumption exists that the conduct was unconstitutional. The issue can be complex & will depend the facts in each case as to whether such state action exists.

“Although the conduct of private parties lies beyond the [Const's] scope in most instances, [USG] authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the [USG] . . . & be subject to constitutional constraints.”

You can look it up yourself: Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991). There are other cases, law reviews, etc., that are available on the subject if you wish to dig through the muddy water on this subject.

Argument:
I was a grunt in the Marines & a grunt as a prosecutor. I spent almost my entire career in federal court prosecuting violent, dangerous & deadly individuals & organizations, especially Mexican Cartel cases in the District of New Mexico.

I litigated many cases designated “Complex Litigation” in federal court, including countless wiretap investigations & prosecutions. I am extremely well versed in HOW the government secures cooperation from private citizens & businesses.

Unlike what’s been revealed in these files, I can't think of a single time when either my Agents or I called a private company & asked for something from them in support of any'g we were investigating. It just doesn’t happen in the ordinary course of things.

The lawyers working for these companies would have laughed themselves straight to court to put a legal smackdown on us so fast we’d never recover from the embarrassment we’d feel for even trying. There are exceptions for emergency requests; but these revelations aren't that.

Normal comms from fed LEO to private companies when the USG demands something from them involves "process". Some examples: 1st, if the matter is sensitive the FBI can use a National Security Letter (NSL). Their use is complex & controversial, but at least it’s formal process.

2nd, assuming the Agents are working with a prosecutor, they can request a Grand Jury subpoena for testimony, records, or both.

3rd, the Agents & prosecutor can work together towards securing sufficient probable cause to seek a court authorized search warrant from a Magistrate Judge, or wiretap from a US District Court Judge.

There are numerous other less common tools, but as I said, my focus here is generally on formal legal process. In my experience, using these tools protects future prosecutions should they arise from any investigation related to the “requests”, such as those exposed by Taibe.

What should happen now IMO?
There should always be an adversarial relationship btw the USG & Twitter. If the USG wants an account banned, it should use formal process. But to be direct, I can't imagine any scenario where the USG should ever be asking Twitter to ban accts.

That is up to Twitter, period. The audacity of even making these requests stuns me, whether by USG LEO's, & even congressmen like we just saw with @RepAdamSchiff demanding a journalist, @paulsperry_ be BANNED - a truly unimaginable overreach by a powerful Gov't official.

You may ask “well, what about misinformation & disinformation”? To which I say, what is it? Indeed, who gets to say what misinformation & disinformation even is, & to whom? And, who invented these useless barriers to free-flowing information anyway, & why? These words suck!

I recall when our esteemed National Security Executives got together in a single announcement & declared the infamous Hunter Biden laptop "has all the classic earmarks of a Russian information operation". But these “experts” were wrong (at best).

In fact, the irony is that these so-called "Senior Intel Officials" were themselves the source of misinformation, but the damage was done. The @nypost had a critically important story crushed by Twitter & other social media platforms, at a critical time in our country's history.

You may say “well, what about all those Russian bots”? To which I say, if the USG is so concerned about particular accounts that may be foreign actors pushing out "fake news", serve Twitter w/ formal process, or put out a public service announcement warning Americans directly.

But don't covertly seek, without any formal legal process, the outright suppression of information by a private American company with its own caretaking responsibilities to its clients, customers, shareholders, & so on. Don't do that; that's not the American way, nor it just.

My bottom line is this: It is unlawful for the USG to deprive any American of her rights enumerated under the Constitution w/o due process of law. Twitter does not escape culpability when the conduct w/ the USG is so interconnected that they effectively become indistinguishable.