Lawyers for Republican Representative Scott Perry argued in a Washington court Thursday that the contents of his phone – which the FBI seized last summer in connection with the Jan. 6 investigation – should be off limits to the Justice Department.
(Bloomberg) — Lawyers for Republican Representative Scott Perry argued in a Washington court Thursday that the contents of his phone – which the FBI seized last summer in connection with the Jan. 6 investigation – should be off limits to the Justice Department.
At stake not only is the government’s ability to access Perry’s phone, but also the scope of a constitutional shield intended to cover members of Congress against civil or criminal legal action related to their work.
That protection is what former Vice President Mike Pence plans to invoke in challenging a grand jury subpoena from the Justice Department special counsel overseeing probes into the 2020 election, according to a person familiar with his plan. Pence will argue he was acting as president of the Senate during the US Capitol insurrection.
Much of the fight over Perry’s phone is under seal, and the Pennsylvania lawmaker’s name wasn’t mentioned during arguments before the US Court of Appeals for the DC Circuit. A person familiar with the case confirmed it is about Perry. Limited public details about the case also match the timeline of Perry’s situation – he initially filed a civil suit challenging the seizure.
The now-disbanded congressional committee that investigated the Jan. 6 attack explored how Perry, an ally of former President Donald Trump, was involved in efforts to push for information into 2020 election fraud.
Perry’s lawyer, John Rowley, argued that the phone records should be protected because they related to specific, and not hypothetical, legislative activity, including the vote on Jan. 6, 2021, when Congress met to certify the results of the 2020 presidential election.
Rowley also represents Trump in connection with the special counsel investigations. He was joined on Thursday by lawyers John Irving and Stan Brand, who each have represented other clients in connection with the probes into Jan. 6 and whether documents were mishandled at Trump’s Mar-a-Lago home.
The Justice Department lawyer who argued the case, John Pellettieri, was joined at the counsel table by Ray Hulser, a veteran department attorney who is part of Special Counsel Jack Smith’s team. Criminal Division appellate lawyer James Pearce sat with Hulser and Pellettieri; he’s long been involved in court activity related to the Jan. 6 investigations.
Perry’s case involves what’s known as the nondisclosure privilege, which the DC court has held prevents the forced disclosure of written materials that fall within the realm of legislative activity. Other federal appeals courts have held this privilege can cover the executive branch’s use of these records, but not the disclosure itself. Perry appealed after US District Chief Judge Beryl Howell ruled the government could access the phone.
At the hearing Thursday, DC Circuit Judges Greg Katsas and Neomi Rao, both confirmed under Trump, peppered Pellettieri with hypothetical examples aimed at testing the line the government wanted to draw between communications by a member of Congress that would be covered by the privilege and those that would not. The third member of the panel, Judge Karen LeCraft Henderson, a George H.W. Bush appointee, dialed in remotely – the connection broke at some point – and didn’t ask questions.
The judges at times appeared skeptical of Pellettieri’s arguments that a lawmaker’s efforts to gather information from the public to help inform their vote, for instance, wouldn’t be covered if the lawmaker wasn’t part of a committee or subcommittee officially involved in fact-finding on that issue.
Rao said that it was a “tricky line.” Pellettieri agreed.
Rowley argued for a more expansive application of the privilege, saying that it should kick in as long as the communication fell within a legitimate “legislative sphere.” Katsas asked if the facts of the case seemed “a bit far afield” from lawmakers’ speech or debate.
Rowley replied that in the modern era, communication via cell phone was the same as conversations that took place in the physical space of a congressional office – what mattered was the substance and connection to legislative fact-finding.
In January, House Speaker Kevin McCarthy and Minority Leader Hakeem Jeffries filed a bipartisan amicus brief in support of Perry’s position, according to CNN.
After arguments on the Speech or Debate Clause, the judges closed the courtroom for a sealed exchange with the lawyers. The Reporters Committee for Freedom of the Press shared earlier this month that it had filed a motion seeking to unseal more of the case; Katsas said they would rule on that later.
Perry’s case is one of several cases related to the special counsel probes pending in the DC federal courthouse, the bulk of which have been taking place in secret, which is typical for ongoing criminal investigations. CBS reported on Thursday that federal prosecutors had filed a motion under seal asking Howell to compel Pence to comply with the subpoena for his testimony.
(Updates last paragraph with Pence case. An earlier version corrected the spelling of a judge’s name in 10th paragraph.)
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