The FBI seized Rep. Scott Perry’s phone in August 2022, under a court-authorized search warrant, but has yet to access relevant documents and communications after Perry moved to prevent it. | Francis Chung/POLITICO
A federal appeals court panel has partially blocked efforts by special counsel Jack Smith to access the seized cell phone data of Rep. Scott Perry (R-Pa.), a key figure in Donald Trump’s bid to subvert the 2020 presidential election.
In a ruling that remains under seal, a three-judge panel of the D.C. Circuit Court of Appeals set aside part of a lower court’s decision that would have allowed Smith’s prosecutors to access much of the contents they sought from Perry’s phone.
The FBI seized the device from Perry in August 2022, under a court-authorized search warrant, but has yet to access relevant documents and communications after Perry moved to prevent it, citing his legal privileges as a federal lawmaker and the authority of Congress to be free of interference from the executive branch.
The dispute began before Attorney General Merrick Garland named Smith as a special counsel last November but appears to have continued on under Smith’s auspices after he took over ongoing investigations into interference with the certification of the 2020 election results.
Smith’s team may seek review by the full bench of the appeals court or by the Supreme Court, so Tuesday’s ruling may not be the final word. A spokesperson for Smith had no immediate comment on the decision or on whether prosecutors would seek further review.
Perry’s lawyers were in court Tuesday morning for another case — the criminal trial of former Trump aide Peter Navarro — and were seen perusing the ruling shortly after it came out. Though they declined to discuss the details, the lawyers seemed upbeat about the result.
The new ruling is a significant milestone for both Perry and the House of Representatives, which raised alarms about prosecutors’ effort to access the phone of a member of Congress.
Notably, while the case was argued in February, it took the appeals court more than six months to issue a ruling. That’s a surprisingly protracted review period for a matter that appeared to be urgent for prosecutors — and one that suggests the panel engaged in a painstaking review of the records at issue.
Though the appeals court’s 29-page decision remains sealed, the three-judge panel indicated in the court’s docket Tuesday that it had partially rejected the ruling of U.S. District Court Judge Beryl Howell, who granted prosecutors access to most of the files seized from Perry’s phone, blocking only a few dozen that she deemed beyond the reach of federal investigators.
Judge Neomi Rao, a Trump appointee, wrote the appeals court’s main opinion, joined by Judge Karen LeCraft Henderson, who was nominated by President George H.W. Bush. Judge Greg Katsas, also a Trump appointee, filed a six-page concurring opinion. The grounds for any disagreement among the judges wasn’t immediately clear since the opinions remain under seal.
At issue is the courts’ interpretation of the Constitution’s “speech or debate” clause, which grants immunity to members of Congress from criminal proceedings that touch on their official work. Perry has argued that much of what Smith’s team has sought is protected by this constitutional provision and should be off-limits to prosecutors.
Howell, however, disagreed, saying that Perry’s freelancing efforts to investigate election fraud — and to communicate it with the executive branch — rendered those contacts unprotected by speech-or-debate immunity.
The appeals court held a public oral argument in the case after partially unsealing the matter amid media scrutiny, but a portion of the argument was still held in secret.
During the argument, a Justice Department attorney now assigned to Smith’s office argued that speech-or-debate protection only applies to inquiries lawmakers conduct pursuant to some formal investigation or inquiry, not those they embark on themselves. Rao and Katsas appeared to disagree, suggesting DOJ’s formulation was too narrow and that there is at least some protection for individual members of Congress acting alone.
Perry told POLITICO in February he was pleased with the appeals court’s decision to put Howell’s ruling on hold while it took up the case.
In an order released Tuesday, the D.C. Circuit panel gave Perry’s lawyers and prosecutors a week to indicate whether they thought any portions of the rulings need to remain secret.
The appeals court’s opinion is likely to be closely scrutinized on Capitol Hill, where any interpretation of the speech-or-debate clause carries enormous implications for lawmakers.
House Democrats and Republicans joined together to intervene in Perry’s case — even without knowing the details of what prosecutors were seeking from Perry — to argue against any sweeping new rulings that would weaken speech-or-debate protections for lawmakers. The House’s friend-of-the-court brief in the case remains under seal.