DC Appeals Court Limits Special Counsel's Access to Rep. Scott Perry's Phone

(AP Photo/Marc Levy)

Special Counsel Jack Smith and his prosecution team were dealt a blow with a new ruling by an appeals court on how much access they might get to Rep. Scott Perry (R-Pa.)'s phone. Readers may remember that Perry, who leads the conservative House Freedom Caucus and is a staunch ally of former President Donald Trump, had his phone seized by the Federal Bureau of Investigation (FBI) in early August. 

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In speaking to Fox News' Brian Kilmeade, Perry called out the seizure -- while he and his family were away from home on vacation -- as "a spectacle" and "intimidation" by the federal government against a sitting representative in Congress. My colleague Nick Arama wrote:

“While that story blew up, I heard from my attorneys, who talked directly to the Department of Justice, who said that I, their client, am not a target of this investigation,” Perry told Kilmeade. “If they would have just contacted my attorney, certainly, we would have provided the information necessary, as required by law. And that would have been the end of it. But they want this spectacle. They want this show. They want the intimidation.”

Now, there's news on a court ruling about Rep. Perry's phone:

In a ruling that remains under seal, a three-judge panel of the D.C. Circuit Court of Appeals set aside part of a lower court’s decision that would have allowed Smith’s prosecutors to access much of the contents they sought from Perry’s phone.

The FBI seized the device from Perry in August 2022, under a court-authorized search warrant, but has yet to access relevant documents and communications after Perry moved to prevent it, citing his legal privileges as a federal lawmaker and the authority of Congress to be free of interference from the executive branch.[...]

Smith’s team may seek review by the full bench of the appeals court or by the Supreme Court, so Tuesday’s ruling may not be the final word. 

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Though information is scant at this point, with the ruling sealed, it's seen as a win for Perry:

The new ruling is a significant milestone for both Perry and the House of Representatives, which raised alarms about prosecutors’ effort to access the phone of a member of Congress.[...]

Though the appeals court’s 29-page decision remains sealed, the three-judge panel indicated in the court’s docket Tuesday that it had partially rejected the ruling of U.S. District Court Judge Beryl Howell, who granted prosecutors access to most of the files seized from Perry’s phone, blocking only a few dozen that she deemed beyond the reach of federal investigators.

At the crux of the case: whether a clause in the Constitution "grants immunity to members of Congress from criminal proceedings that touch on their official work":

At issue is the courts’ interpretation of the Constitution’s “speech or debate” clause, which grants immunity to members of Congress from criminal proceedings that touch on their official work. Perry has argued that much of what Smith’s team has sought is protected by this constitutional provision and should be off-limits to prosecutors.

Howell, however, disagreed, saying that Perry’s freelancing efforts to investigate election fraud — and to communicate it with the executive branch — rendered those contacts unprotected by speech-or-debate immunity.

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With the next election for Perry's 10th Congressional District seat coming up in 2024, hopefully, he can concentrate on that more fully soon. The race just gained another Democrat looking to snag the seat Wednesday.

If and when there's an update, like Smith's office commenting on the ruling or Rep. Perry's attorneys seeking a review, we'll bring it to you. So far, that hasn't happened.

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