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Appeals court limits search of Rep. Scott Perry’s cell phone in Jan. 6 probe

Opinion centers on the Constitution's protection for ‘speech or debate’ by members of Congress

Rep. Scott Perry, R-Pa., attends a news conference Tuesday with members of the House Freedom Caucus outside the Capitol.
Rep. Scott Perry, R-Pa., attends a news conference Tuesday with members of the House Freedom Caucus outside the Capitol. (Tom Williams/CQ Roll Call)

A federal appeals court in Washington released an opinion Wednesday that found a constitutional protection for members of Congress should limit what information federal investigators can access on a phone seized last year from Rep. Scott Perry, R-Pa.

A unanimous ruling from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit comes in what has largely been a sealed case related to Special Counsel John L. “Jack” Smith’s probe into the Jan. 6, 2021, attack on the Capitol.

Under the ruling, many of Perry’s communications with fellow members about claims of fraud or efforts to overturn the 2020 election would remain off limits to investigators, and a lower court judge will have to do a “communication-by-communication” review of whether investigators can see Perry’s other communications with fellow members or Trump administration officials or with the general public.

It’s the most public twist yet in the monthslong legal battle Perry has waged to keep the Justice Department from accessing contents of his phone. And the opinion held for the first time that lawmakers’ cellphones have similar protections from search as their physical offices.

The case turned on the Constitution’s protection for “speech or debate” by members of Congress, which provides them with immunity from civil and criminal suits for actions connected to acts taken as part of their office.

Perry argued that also meant investigators could not search his phone for “informal factfinding” he did in communicating with fellow members, federal officials and the public surrounding the 2020 election.

The lower court judge in the case, Judge Beryl Howell, ruled that “informal factfinding” didn’t count. Howell’s December ruling would have granted the DOJ access to all of that information, and Perry appealed to the D.C. Circuit.

Wednesday’s opinion, written by Judge Neomi Rao, reversed Howell’s categorical holding and found the judge should not have marked Perry’s communications with other members as “political” just because they concerned the result of the election.

Rao wrote that at the time Congress was considering whether to certify the Electoral College votes and legislation from Democrats that would alter federal election procedures.

“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,” Rao wrote.

Rao was joined by Judge Karen L. Henderson and Judge Gregory Katsas, who filed a concurring opinion.

Perry spokesman Jay Ostrich, in a statement, praised the ruling as a “victory for the Constitution.”

“This decision firmly establishes that the Executive Branch can’t prevent Congressman Perry, or any Member of Congress, from doing their job by having internal communications with other Members, or with their own staff — in this case, looking into certification of the presidential election,” Ostrich said.

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 Wednesday’s opinion proceeded separately.

It was not immediately clear Wednesday whether Smith’s office would appeal the case to the full D.C. Circuit or to the Supreme Court.

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