Appeals court limits access to GOP congressman’s phone in defeat for special counsel

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A federal appeals court has blocked federal prosecutors from obtaining a swath of cellphone records from a Pennsylvania Republican congressman who worked to overturn Donald Trump’s election defeat in 2020, in a ruling that could have dramatic legal implications that benefit federal lawmakers.

The ruling from the three-judge panel of the DC Circuit Court of Appeals made public Wednesday blocks special counsel Jack Smith’s office from obtaining Rep. Scott Perry’s discussions with other lawmakers about the 2020 election.

It also establishes additional protection for members of Congress around their discussions as they prepare for votes, so that they cannot be swept up in federal criminal investigations – a major legal development in defining the separation of powers.

Prosecutors may be able to get records of Perry’s interactions with Trump administration officials and the former president himself on a case-by-case basis, however.

At very least, the appeals court proceedings have put on hold prosecutors’ ability to access a cell phone they wanted to examine of a top, well-connected official backing Trump’s election fraud beliefs after the 2020 election in Pennsylvania and elsewhere.

The FBI seized Perry’s phone in August 2022, and Smith has continued to want access to the records for his own investigation, which is ongoing.

The question about access to Perry’s phone records turns largely on whether what he was discussing was part of his duties as a member of Congress.

Perry had argued in court that messages he sent about contesting the 2020 election and election fraud amounted to “fact-gathering” before the January 6, 2021, congressional certification of the presidential election. A trial judge disagreed, but the appeals court sided with the congressman on some crucial arguments he made about preparing for votes. They didn’t give Perry as broad of a protection as he wanted, however.

“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 protected” under the law, Circuit Judge Neomi Rao wrote in the opinion of the three-judge panel.

“For courts to pick and choose the scope of the privilege based on a free-floating evaluation of the proper objects of congressional deliberation would threaten the Speech or Debate Clause’s essential protection for legislative independence,” Rao added. (The Speech or Debate Clause is a part of the Constitution that protect congressional deliberations from being used against lawmakers in court.)

That means some of Perry’s communications, especially with other members of Congress and potentially even with people outside Congress, could have protection from becoming part of the criminal investigation.

“Representative Perry’s conversations with other Members concerned the passage of proposed legislation as well as the exercise of the constitutional duty to certify the electoral votes from the 2020 election,” the opinion said. “These communications were privileged, and we leave it to the district court to implement this holding on a communication-by-communication basis.”

All three judges on the appeals court panel—Rao, Greg Katsas and Karen Henderson—voted in favor of further limiting prosecutors’ access to Perry’s communications. Rao and Katsas were appointed by Trump; Henderson by George H.W. Bush.

Stanley Brand, the former House general counsel who also represents Perry, called the opinion a “landmark validation” of constitutional protections for Congress, and a “big win” for the legislative branch.

In a statement on behalf of Perry, his legal team said the opinion “establishes that Members’ internal communications with one another, and with staff, about matters within Congress’ jurisdiction – in this case, the January 6th certification of the presidential election and proposed legislation that would have changed future election procedures – are not ‘political,’ but constitute the routine manner in which Members discharge their constitutional responsibilities.”

Perry’s phone was seized in August 2022 after the FBI obtained a court’s permission. Prosecutors at the time had been exploring events in Pennsylvania where lawmakers discussed challenging the election, but some of those pursuits were put on hold as the appeal over Perry’s phone went through the court system, sources have told CNN.

Though Perry challenged the Justice Department’s ability to use his seized communications in what eventually became Smith’s 2020 election investigation, Judge Beryl Howell allowed the investigators to access all but about 160 of the thousands of records on his phone.

The records included hundreds of examples of Perry cajoling executive branch officials to question the 2020 election.

Howell, the appeals court said, must now examine the roughly 2,000 records from Perry’s cell phone, “communication-by-communication,” to decide what, if anything, federal prosecutors can obtain from his interactions with Trump administration officials after the 2020 election. But Perry’s discussions with fellow lawmakers will be shielded from prosecutors.

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