Appeals court restricts DOJ access to Rep. Scott Perry's phone in 2020 election probe

WASHINGTON − A federal appeals court ruled Rep. Scott Perry’s communications with other lawmakers are off-limits to Justice Department special counsel Jack Smith, but that a federal judge must review whether to grant prosecutors access to hundreds of records dealing with people outside the House of Representatives.

Smith subpoenaed Perry’s phone records in August 2022 as part of his investigation into Donald Trump. A grand jury indicted the former president on conspiracy charges he tried to overturn the 2020 election and Trump has pleaded not guilty.

The records could reveal more information about what Perry, R-Pa., and others did while pursuing claims of election fraud after the 2020 election.

Perry had met with Trump and questioned election results in the months after the 2020 election. Perry fought the subpoena by arguing the Constitution’s speech-and-debate clause protected his legislative communications from an executive branch prosecutor.

Rep. Scott Perry, R-Pa., chairman of the House Freedom Caucus, speaks during a news conference July 14, 2023.

U.S. District Judge Beryl Howell ruled that 2,055 records could be released to Smith, while 161 records were properly withheld. Perry appealed, seeking broad protection for all of his phone's records.

The case has been largely fought behind closed doors. But a decision unsealed Wednesday by a three-judge panel of the D.C. Circuit Court of Appeals ruled that Perry sought too broad a protection, but deserved to keep his legislative messages confidential.

Circuit Judge Neomi Rao wrote the decision for Circuit Judges Gregory Katsas and Karen Henderson, ruling that Howell must review Perry's communications with executive branch officials and others outside Congress before releasing them to Smith.

“When evaluating whether something is a ‘legislative act,” Rao wrote, “the Court will often consider whether protection of the privilege is 'necessary to preserve the integrity of the legislative process.'”

Rao and Katsas were appointed by Trump and Henderson was appointed by George H.W. Bush.

Katsas, who wrote a concurring opinion, said 2,219 records were stored on the phone, including 1,508 with individuals outside the House of Representatives. The latter are the records Howell must review.

Perry has argued the latter messages deal with “informal factfinding” about the 2020 election and modifying election procedures, Katsas wrote. These are the records Howell will have to review, to determine whether they were “necessary to preserve the integrity of the legislative process.”

“The privilege claims asserted by Representative Perry are substantially overbroad,” Katsas wrote. “Many of the disputed records involve communications through which he sought to influence the conduct of officials outside the Congress—Executive Branch officials, state legislative officials, and campaign officials.”

The House committee that investigated the Capitol attack on Jan. 6, 2021, found Perry tried to help Trump overturn the election results. But Perry has not been charged with Trump.

Perry introduced Jeffrey Clark, who was then an assistant attorney general, to Trump after the 2020 election. Clark has been indicted with Trump on charges he drafted a letter to state legislative leaders in a half-dozen states for the attorney general to sign urging them to reject electors for President Joe Biden because of debunked concerns about election fraud. Clark has pleaded not guilty.

Perry texted Mark Meadows, then White House chief of staff, repeatedly Dec. 26 to 28, 2020, pressing for Clark to be elevated within the department. Trump considered appointing Clark as attorney general in early January 2021 but didn’t follow through after top lawyers in the Justice Department and White House counsel’s office threatened to resign.

On Dec. 27, Perry called Acting Deputy Attorney General Richard Donoghue, to criticize the FBI and to say Clark “would do something about this,” according to Donoghue.

This article originally appeared on USA TODAY: Court limits DOJ access to Scott Perry's phone in 2020 election probe