The precise nature of the litigation is unclear. However, docket entries connected to the case suggest it has been ongoing for months, one of a growing list of secret battles Smith has waged to secure testimony and documents in his probes of Donald Trump. Smith has won similar fights to secure testimony from key members of Trump’s inner circle, including former vice president Mike Pence, former chief of staff Mark Meadows and Trump social media manager Dan Scavino.
But the nature of the secretive fight against Holtzblatt and his client has been difficult to pinpoint, identifiable only by a series of clues on the appeals court docket. Several days prior to Friday’s oral argument, the circuit asked lawyers for both sides of the dispute to identify who would participate in the oral argument. The government indicated that Pearce — who had handled a slew of high-level Jan. 6 legal fights — would lead arguments for the Justice Department. Wilmer Hale didn’t publicly identify its role in the proceedings, information filed in response to the circuit’s request hinted at Holtzblatt’s role. Holtzblatt and a spokesperson for Smith declined to comment, and spokespeople for WilmerHale did not immediately respond to requests for comment.
The closed-door argument was slated to run for 30 minutes, but it took more than two hours for the lawyers to emerge. A court clerk and a security officer stood by just outside the fifth-floor DC Circuit court as the arguments progressed.
The judges who heard the matter were Cornelia Pillard, an appointee of President Barack Obama, along with Michelle Childs and Florence Pan, appointees of President Joe Biden.
The appeals court docket indicates that the litigation was initiated on Jan. 5 before US District Court Judge Beryl Howell, who was then the district’s chief judge, tasked with overseeing all matters connected to Smith’s grand jury. Howell ruled in favor of the Justice Department on March 3, prompting a quick appeal and an emergency motion to stay her decision. The same three appeals judges briefly halted Howell’s order before deciding on March 23 to reject the stay request.
Despite Smith’s apparent win, the case moved forward toward oral arguments. Notably, the district court docketed the matter as a “stored communications” fight, which typically references an effort by prosecutors to obtain communications from third-party sources such as telecom providers or social media companies such as Google, Twitter and Facebook.
The secrecy and speed with which the matter has moved is also comparable to the speed with which the appeals court — typically a slow-moving body — has treated the grand jury fights related to Trump.