Judge issues recommendation in case seeking to unseal warrant for Scott Perry phone

Solomon’s judgement is used as shorthand for a legal compromise that makes neither side happy.

In the case of U.S. Rep. Scott Perry and the efforts of York County media outlets to gain access to a search warrant and supporting documents that resulted in the FBI seizing his cell phone in August 2022, U.S. Magistrate Judge Susan Schwab last week issued a Solomonic recommendation that addresses the interests of the U.S. Justice Department to keep the documents under seal while also addressing the public interest in making the information public.

Schwab, at the conclusion of a 62-page document, recommended that the court should unseal the materials, but also grant the U.S. Justice Department to “provide access to the warrant materials with targeted redactions to protect its interest.”

“It’s a strong win,” said Grayson Clary, staff attorney for the Reporters Committee for Freedom of the Press, representing the York Daily Record, York Dispatch and Pennlive in the case.

In short, he said, the ruling means that more information about the evidence supporting the government’s seizure of Perry’s cell phone may be made public.

Previously: Unsealed court ruling sheds light on Scott Perry's efforts to overturn the 2020 election

More: YDR, 2 other media organizations request documents in seizure of Scott Perry's cell phone

But the details of the ruling give the government the right to redact the documents to protect its investigation and the privacy of some of those involved in the case.

That’s where it gets complicated.

Judge Schwab concluded that she did not have to “determine at this time whether the First Amendment applies to warrant materials, that the warrant materials are subject to the common law presumption of access, that the United States has shown compelling reasons for not unsealing the warrant materials in their entirety, but that the United States has not shown targeted redactions are insufficient to protect its compelling interests.”

With that, she did recommend that the Justice Department “be ordered to submit proposed redactions” to the warrant and its supporting documentation.

What remained was determining how those redactions were processed. The Justice Department wanted to submit its proposed redactions to the court. The newspapers argued that the Justice Department should be ordered to file its proposed redactions on the court’s public docket and explain why portions should remain secret.

The magistrate recommended “that the court order the United States to publicly file its redactions along with as much of an explanation as it can provide on the record without harming its interests...in protecting its ongoing investigation and the privacy rights of some of those involved.”

Schwab wrote that the Justice Department should be permitted to provide the court any additional information to support redactions that “may reveal information that should be kept secret.”

How the redactions are processed has been an issue in the past in the case. When the Justice Department unsealed previous court filings, huge blocks of text were blacked out, rendering the documents nearly indecipherable.

In other words, the government can black out portions of the documents, but will have to publicly justify the redactions, but if the explanation of the redaction reveals information that it wants to remain secret, it can ask a judge to examine the reasoning behind closed doors.

The bottom line is that the search warrant and the documentation that provided probable cause to the FBI to seize Perry’s cell phone may not be immediately available. In her ruling, Schwab noted that “additional proceedings ... may be required in this case,”

The public has already had access to what may be some of the documentation. In litigation filed by Perry to prevent the FBI from examining his text messages – litigation that resulted in a federal court granting the government access to the majority of the thousands of text messages – some of the messages were inadvertently released publicly when a court document was briefly posted on the court’s public docket.

Those text messages detailed Perry’s efforts to assist former President Trump in overturning the results of the 2020 presidential election.

This article originally appeared on York Daily Record: US judge issues recommendation in Scott Perry phone case