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Federal judge orders Rep. Scott Perry to turn over more than 1,600 messages to DOJ

Judge sets Dec. 27 deadline for Pennsylvania Republican to comply

Rep. Scott Perry argued that his phone messages were protected by the Constitution, but a federal judge disagreed and ordered him to turn most of them over to the Justice Department.
Rep. Scott Perry argued that his phone messages were protected by the Constitution, but a federal judge disagreed and ordered him to turn most of them over to the Justice Department. (Tom Williams/CQ Roll Call file photo)

A federal judge in Washington ordered Rep. Scott Perry to turn over more than 1,600 phone messages to the Justice Department following over a year of litigation over the constitutional protections for members of Congress.

The order from U.S. District Judge James Boasberg on Tuesday found that most of Perry’s more than 2,000 messages sought by the department didn’t have protection under the Speech or Debate Clause of the Constitution. Perry, R-Pa., was ordered to turn over those messages related to the 2020 election in Pennsylvania and former Vice President Mike Pence’s role in presiding over the Jan. 6, 2021, counting of Electoral College votes, according to Boasberg’s opinion.

The order gave Perry until Dec. 27 to turn over the messages. A representative for Perry could not be immediately reached for comment Wednesday.

Much of Perry’s case remains under seal as the lawmaker has fought for more than a year to keep investigators for special counsel John L. “Jack” Smith from accessing his communications. Perry has argued that the Speech or Debate Clause provides lawmakers with immunity from criminal or civil liability for doing their jobs. 

Smith has indicted former President Donald Trump on four criminal counts related to the events of Jan. 6, 2021. 

Boasberg largely agreed with an opinion issued last year by U.S. District Judge Beryl Howell for the District of Columbia, holding that most of Perry’s communications with people outside the government and in the executive branch fell outside of the constitutional protections.

“The mere possibility that Congress could one day enact legislation related to the insurrection or COVID-19” didn’t mean that Perry’s communications about those topics could be kept from the government, Boasberg said.

He also said Perry’s messages about Pence’s participation in the counting of Electoral College votes on Jan. 6, 2021, could similarly be turned over to the government.

Although the messages “may bear a relationship to legislative proceedings insofar as they touch on the certification vote, they are neither ‘integral’ nor ‘essential’ to Perry’s participation in those proceedings because they pertain only to Vice President Pence’s role,” Boasberg wrote.

Howell previously handled the case as chief judge for the district court. Boasberg took over as chief judge earlier this year and also took over the case.

Boasberg’s decision followed a September opinion by the U.S. Court of Appeals for the District of Columbia Circuit that partially reversed Howell’s original ruling and set up a new framework to analyze the case.

The court fight started after FBI agents seized Perry’s cellphone last August while he was on vacation. At the time, he accused DOJ of a partisan attack and challenged the search.

Perry initially filed a civil lawsuit seeking an order barring DOJ from searching his phone before dropping it in October. The sealed case, which resulted in Tuesday’s order, proceeded separately.

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