Trump Asks Judge To Reopen Twitter LOLsuit Citing 'Twitter Files'

In May of 2022, US District Judge James Donato summarily dropkicked Donald Trump's lawsuit against Twitter for being defective in virtually every aspect. The court was not convinced by Trump's theory that, after Rep. Adam Schiff threatened to revoke Section 230, Twitter became an arm of the federal government and thus it was a violation of Trump's First Amendment rights to boot him off the platform the day after he incited a coup.

The court was even less impressed with Trump's lawyers, who were astonished to discover that Twiqbal really does mean that the facts alleged must be plausible in all federal civil cases:

Plaintiffs make the odd assertion that these pleading standards apply only in antitrust conspiracy actions. Twombly and Iqbal expressed no such limitation, and their standards have been applied to a myriad of Rule 12(b)(6) motions in non-antitrust actions in every federal district and circuit court. A scant minute of online research makes this abundantly clear.

And so Judge Donato must be super excited to read the latest offering from Team Trump, which already appealed to the Ninth Circuit, but is now back asking for what amounts to an advisory opinion from the trial court based on "a truly unique turn of events."

Those "events" would be Elon's Musk's purchase of Twitter and then handing the keys to the kingdom to Bari Weiss and Matt Taibbi with a mission to "prove" that his predecessors had been mean to conservatives, as well as a complaint filed by the Attorneys General of Missouri and Louisiana on the theory that the Biden administration is censoring content on social media by suggesting that platforms take down recipes for ivermectin smoothies and the like.

The "Twitter Files" have largely fallen flat, managing to reinforce conservatives' sense that they were being persecuted, while simultaneously proving that the Trump administration lodged more and more dubious takedown requests in 2020 than the Biden campaign did. Contrast a removal request for non-consensual nude images of the future president's son with the request that Twitter take down a tweet from Chrissie Teigen calling the sitting president a "pu**y a** bitch."

As for the AGs' suit, they filed in the Western District of Louisiana and got themselves in front of Judge Terry Doughty, one of Trump's looniest appointees, who allowed this exercise to go on long enough that they're deep into discovery. Toward that end, they plaintiffs deposed Elvis Chan, the head of the Cyber Branch at the FBI's San Francisco field office. According to Trump's motion, Chan "stated that the FBI and the congressional committee staff members coordinated their oversight of social media companies" and revealed a "massive government influence on Twitter."

In fact, Chan said nothing of the kind, despite the attorneys for the plaintiffs phrasing the question several different ways over 386-pages of testimony. Instead, he repeatedly testified that the FBI drew social media platforms' attention to problematic posts which might violate the TOS, and left it to the sites to determine if the posts should be taken down. For example:

ATTORNEY: And do you agree with that statement, that you were working with social media companies in the 2022 election cycle to make sure that foreign disinformation would be identified and you could share that information with them so they can knock down accounts and knock down disinformation content?

CHAN: Yeah, so looking at that sentence and from my recollection, the FBI part of it is the information sharing portion, and then the social media company portion is to decide if it violates their terms of service. And if it does violate their terms of service, one of the actions they could take is to knock down accounts or to knock down content.

That would not be "oversight." Nevertheless, Trump has filed a motion for indicative ruling under FRCP 62.1 asking Judge Donato to tell the Ninth Circuit that he would totally un-dismiss the case if he did still have jurisdiction of it, so the panel should totes remand with instructions to re-hear in light of some tweets by Bari Weiss and Matt Taibbi, plus a totally unhelpful deposition in an unrelated case in Louisiana.

But summer's coming. And, as if to underscore the fundamental unseriousness of this exercise, the motion was followed within a few days by a stipulation that, as the parties are going to be super busy for the next couple months, the court can put the defendants' response off 'til June, and postpone the hearing until July, or heck even August.

Well ... good luck with all that.

Trump v. Twitter [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.