A ranking Republican Congressman’s conversations with allies in Congress and the Trump White House about challenging the 2020 election results are off-limits to special counsel Jack Smith, who is prosecuting Donald Trump. That’s the ruling of the D.C. Circuit Court of Appeals.
It ruled today that prosecutors’ attempt to access the cellphone communications of Congressman Scott Perry (R-Pa.) with colleagues and executive branch officials violated his immunity under the Constitution’s Speech or Debate clause, which shields members of Congress from legal proceedings connected to their official duties. Perry is the Chairman of the House Freedom Caucus.
“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,” Judge Neomi Rao wrote for a three-judge panel of the court.
The decision breaks new ground about the reach of the Constitution’s Speech or Debate Clause. For the first time, a federal appeals court has held that lawmakers’ cellphones are subject to the same protections as their physical offices. It is the first major defeat for special prosecutor Smith in his attempt to prosecute allies of then-President Donald Trump for their efforts to overturn the results of the 2020 election.
The decision was written by Judge Rao, a Trump appointee, and was joined by a Trump appointee (Judge Gregory Katsas) and a Bush appointee (Judge Karen LeCraft Henderson). But Katsas filed a separate concurrence construing the privilege for lawmakers more narrowly than the other judges, although not enough to make a difference in the outcome of Perry’s case.
The FBI seized Perry’s phone under a court-approved search warrant last August. Prosecutors did not immediately access Perry’s phone but instead sought a second search warrant authorizing it to review Perry’s communications with other members of Congress, the White House and others related to the 2020 election.
In its ruling, the appeals court overturned a lower-court ruling by trial judge Beryl Howell, an Obama appointee, who had largely sided with the Justice Department’s effort to access Perry’s phone contents. Judge Howell argued that Perry’s “informal” fact-finding about the 2020 election was not protected by the Speech or Debate clause and could not be shielded from review by prosecutors.
But the appeals court disagreed, concluding that members of Congress don’t need to be acting pursuant to some official authorization such as a committee inquiry in order to have their materials protected by the Speech or Debate clause. Nevertheless, the appeals judges said not every effort a lawmaker makes to seek information was entitled to automatic protection.
“We disagree with the district court’s holding that informal factfinding is never a legislative act. But we also reject Representative Perry’s proposition that informal factfinding is always a legislative act,” the appeals court said.
Howell’s task could be difficult, because the appeals court laid down somewhat fuzzy guidelines. The appeals court said not all information members of Congress gather to inform their votes or lobbying of other members is privileged, only communications “integral” or “essential” to that work or deemed privileged under earlier lines of court decisions.
On the other hand, the appeals court ruled that Smith could access some of the contents of Perry’s phone that had no relationship to Perry’s legislative work, such as newsletters or documents that included talking points.
