Appeals court panel largely sides with Rep. Perry, blocks Special Counsel Smith from accessing some data on seized cellphone

September 15, 2023

Special Counsel Jack Smith suffered a setback in court concerning his efforts to investigate the contents of a cellphone seized from Rep. Scott Perry (R-PA) last year by the FBI, Politico reported.

Perry, an ally of former President Donald Trump, is alleged to have played a role in the efforts to challenge and reverse the 2020 election results in certain states due to allegations of fraud, and a legal battle ensued over whether the contents of his cellphone were protected by his congressional immunity from investigation and prosecution.

An appeals court panel ruled that at least some, though not all, of the communications and documents on the congressman's seized cellphone were protected, and subsequently ordered a district court judge to do a more thorough review of the contents to determine individually what was and was not covered by the congressman's privileged immunity.

The Speech or Debate Clause immunity for members of Congress

At issue here is the "Speech or Debate Clause" found in Article 1, Section 6 of the U.S. Constitution, which reads in relevant part: "The Senators and Representatives shall ... in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

Following the seizure of his cellphone by the FBI in August 2022, Rep. Perry invoked that privileged immunity to block first the Justice Department and then Special Counsel Smith from reviewing the stored data on the device as part of a broader investigation into the post-2020 election activities of former President Trump and his associates.

Just last month, U.S. District Judge Beryl Howell had ruled largely in favor of Smith and the DOJ and granted them access to the vast majority of the data on Perry's phone, but a three-judge panel of the D.C. Circuit Court of Appeals just overturned Howell's ruling in substantial part.

District court got it wrong

In a unanimous ruling, Judge Neomi Rao wrote that the district court "incorrectly withheld the privilege from communications between Representative Perry and other Members about the 2020 election certification vote and a vote on proposed election reform legislation. These are quintessential legislative acts entitled to the privilege, and we vacate the district court’s judgment with respect to those communications and remand."

Perry had argued that all of the more than 2,000 messages and documents in question on his cellphone were protected, including those involving non-members of Congress -- such as state legislators and members of the Executive branch -- as they were part of what he described as "informal factfinding" in relation to the 2020 election certification and proposed legislation, but the district court totally rejected that argument and the circuit court panel wasn't entirely receptive to it either.

"We disagree with the district court’s holding that informal factfinding is never a legislative act," Rao wrote. "But we also reject Representative Perry’s proposition that informal factfinding is always a legislative act."

Win and loss for both sides

In conclusion, Judge Rao wrote, "Representative Perry’s conversations with other Members concerned the passage of proposed legislation as well as the
exercise of the constitutional duty to certify the electoral votes from the 2020 election. These communications were privileged, and we leave it to the district court to implement this holding on a communication-by-communication basis."

"As to Representative Perry’s communications with individuals outside the federal government, communications with members of the Executive Branch, and communications with other Members of Congress regarding alleged election fraud during the period before Congress’s vote certifying the 2020 election and before its vote on H.R. 1, the district court failed to apply the fact-specific privilege inquiry" established by prior precedent, she continued.

"We therefore vacate the judgment in part and remand for the district court to apply the correct standard, consistent with this opinion," Rao added. "With respect to the remaining privilege determinations about Representative Perry’s communications with Members of Congress, we affirm."

Unclear if matter will be further appealed

Politico noted that it was unclear if Special Counsel Smith would appeal the panel's ruling, either to the entire D.C. Circuit Court or the Supreme Court, and Smith's office declined to respond to a request for comment.

Likewise, it is unknown if Rep. Perry will continue to fight to try to extend his privileged immunity to the entirety of the data on the seized cellphone or accept that only some of it is covered by the Speech or Debate Clause.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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