Jack Smith handed legal defeat in fight over congressman's phone records

 September 15, 2023

Special Counsel Jack Smith suffered a legal defeat this week when a federal appellate panel refused his demand for private records from a congressman.

As The New York Sun associated editor A.R. Hoffman explained in an article published on Wednesday, that move could provide former President Donald Trump with a legal "template."

Smith sought phone records related to 2020 election, January 6

At issue are a collection of telephone call records and text messages belonging to Pennsylvania Republican Rep. Scott Perry.

FBI agents took possession of the congressman's phone in the summer of 2022 while Perry was traveling with his family.

Fox News reported in February that Smith argued he should have access to communications involving Perry and other lawmakers related to Trump and the January 6 riot on Capitol Hill.

Yet as Hoffman noted, Judges Neomi Rao, Gregory Katsas, and Karen Henderson disagreed, pointing to Article I, Section 6 of the Constitution.

Discussions about elections were "quintessential legislative acts"

Known as the Speech or Debate clause, it holds that federal lawmakers "shall not be questioned in any other Place" regarding "for any Speech or Debate in either House."

The judges ruled that Perry's communication regarding certification of the 2020 presidential amounted to "quintessential legislative acts" that are protected by the clause.

Hoffman pointed out how previous Supreme Court rulings have found the clause's protections are not without limits, as it ruled the 1972 case Gravel v. United States that purely political actions are not covered.

This principle was reaffirmed that same year in United States v. Brewster, which stressed that the privilege only extends to "an act generally done in Congress in relation to the business before it."

Major implications for Trump

U.S. District Court Judge Beryl Howell initially found that the bulk of Perry's communications were unprotected as they concerned "informal fact finding" rather than "a legislative act."

However, Judge Rao disagreed, writing, "While elections are political events, a Member’s deliberation about whether to certify a presidential election or how to assess information relevant to legislation about federal election procedures are textbook legislative acts."

Meanwhile, Hoffman stressed how the conclusion that "discussions with other Members about alleged fraud in the 2020 presidential election" are protected "could reverberate" in Trump's Washington, D.C. criminal case.

"While the Speech or Debate Clause will not help him — the privilege is restricted to lawmakers — he could point to the Take Care Clause, as well as the protections of executive immunity," Hoffman wrote, adding, "The take care clause obligates the president to take care that our laws are faithfully executed."

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