A federal appeals panel on Tuesday declined a request from Rep. Scott Perry (R-PA) to block Special Counsel Jack Smith from accessing data on his seized phone.
The FBI seized Perry’s phone in August 2022 while investigating efforts by former President Trump and his allies to overturn the results of the 2020 Presidential election. However, Smith’s team has not yet examined the seized data, which was set aside as legal challenges play out.
The DC Circuit Court of Appeals on Tuesday sent Perry’s case back to a lower court to “apply the correct standard” and determine which of Perry’s communications can be examined.
That lower court had been ordered to weigh Perry’s arguments of privilege and determine whether investigators can look at his 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.”
Bipartisan House leadership supported Perry in arguing that the “speech or debate” clause of the Constitution bars the Justice Department from seeing the phone contents.
The “speech or debate” clause essentially states that speech inside the Capitol by Senators and Representatives is privileged and “shall not be questioned in any other place.”
In February the clause was invoked by former Vice President Pence due to his role as President of the Senate on January 6, 2021, in hopes of preventing Smith’s team from compelling his testimony. By April, though, Pence had given up fighting a federal subpoena and testified before a grand jury in the investigation.
Perry, a Trump ally, is under scrutiny for his role in the lead-up to the deadly January 6 insurrection. The Congressman played a crucial behind-the-scenes role in lobbying Trump to appoint former Justice Department official Jeffrey Clark as acting Attorney General so that Clark could launch investigations into Trump’s bogus election fraud claims—though Trump ultimately declined Clark’s appointment.
However, last year’s House Select January 6 Committee raised numerous questions about a reported seven-and-a-half-hour gap in then-President Trump’s phone logs on the day of the insurrection. “It does seem like the gaps are suspiciously tailored to the heart of the events. But we’re checking that out,” then-January 6 Committee member Rep. Jamie Raskin (D-MD) had said in April 2022.
Tuesday’s court ruling did reportedly narrow somewhat the ability of investigators to scrutinize Perry’s phone while still allowing them to continue their efforts to access the data.
Smith’s team wants access to more than 2,200 records of communications from Perry made to Trump and others.
The decision on Tuesday was unanimous and came from three GOP-appointed judges. It remains under seal but could possibly be made public in the future, barring any objections from the special counsel’s office or Perry’s attorneys.
