Skip to content

Appeals court reverses part of ruling on DOJ access to Perry’s phone

Court tells judge to 'apply the correct standard' in case of seized phone

Pennsylvania Republican Rep. Scott Perry's phone was seized by the FBI last year.
Pennsylvania Republican Rep. Scott Perry's phone was seized by the FBI last year. (Tom Williams/CQ Roll Call file photo)

A federal appeals court in Washington on Tuesday partially reversed a lower court judge’s decision giving the Justice Department access to the phone seized from Rep. Scott Perry, R-Pa., in a government search last year.

But the Circuit Court of Appeals for the District of Columbia didn’t provide any detail about its reasoning in a case that has largely proceeded out of the public eye. The order only noted that it partially reversed a lower court judge and sent the case back.

The notice on the court docket said only that the district court judge should “apply the correct standard” to Perry’s communications with individuals outside the federal government, members of Congress and of the executive branch regarding alleged election fraud from the time before Congress voted to certify the 2020 election result and its March vote on an elections bill backed by Democrats.

The order from the three-judge panel followed months of legal wrangling after Perry disputed the search of his cell phone by federal agents. The case revolves around the Constitution’s protections for “speech or debate” by members of Congress that are meant to provide lawmakers with immunity from criminal or civil liability for doing their jobs.

John Rowley, Perry’s attorney, told the appellate judges at oral arguments in February that District Judge Beryl Howell overstepped her bounds by giving the DOJ access to Perry’s phone. Rowley said the phone included messages about the joint session to certify Electoral College votes on Jan. 6, 2021, and a Democratic-backed election bill that the government shouldn’t have access to because they go to the core of Perry’s work as a legislator.

The government argued that extending the speech or debate protection too broadly could give members of Congress broad immunity to almost any kind of investigation.

Howell’s ruling came in December and Perry appealed. The reasons for the DOJ search and seizure remain unclear. During oral arguments, the parties said the phone was seized subject to a grand jury subpoena.

Judge Neomi Rao, appointed by President Donald Trump and one of three appellate judges on the case, said at the time that the judges would have to draw a “tricky line” over how far to extend the protections for individual members of Congress.

Much of the case remains under seal, including the opinion underlying the order issued Tuesday. The order is one of the few public documents in the case. The same order otherwise affirmed Howell’s ruling. 

The appellate panel also entered an order in the case directing Perry and the government to submit briefs next week over whether to unseal the entire opinion. 

The order noted that the 29-page opinion was written by Rao with a six-page concurring opinion by Judge Gregory G. Katsas, who was also appointed by Trump. The third judge on the panel, Karen L. Henderson, was appointed by former President George H.W. Bush.

A representative for Perry could not be immediately reached for comment Tuesday.

FBI agents seized the phone last August while he was on vacation with his family, Perry said. He accused the DOJ of a partisan attack and invoked the search of former President Trump’s private club, Mar-a-Lago,  in Florida, that occurred a few days later.

Perry filed a civil lawsuit last year seeking an order barring the Justice Department from searching his seized phone but dropped the suit in October. The case covered by Tuesday’s order proceeded separately. 

Recent Stories

Capitol Ink | The Trumpy Handbook

House Republicans shift message on extending 2017 tax cuts

Will the real Donald Trump get the coverage he deserves?

‘Hospital at home’ gains bipartisan support but questions remain

Should doctors in Congress earn money for their side job?

Supreme Court dodges definitive answer on legality of a ‘wealth tax’