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Court Strictly Limits Jan. 6 Investigators’ Access to Rep. Perry’s Phone

A U.S. appeals court has barred special counsel Jack Smith’s investigation from recovering cellphone text messages and other communications between Rep. Scott Perry (R-Pa.) and other lawmakers and staffers regarding overturning the 2020 election on January 6, 2021, and ruled that a federal judge must individually review approximately 2,000 documents to decide which, if any, fall outside the scope of lawmakers’ constitutional immunity for criminal investigation.

A 29-page opinion released Wednesday by the U.S. Court of Appeals for the District of Columbia Circuit lays out the reasoning behind its Sept. 5 reversal under a lower court ruling by the U.S. district judge Beryl A. Howell.

The opinion, which the Justice Department could appeal, continues a secret dispute that has blocked research into the House’s top conservative lawmaker’s phone data for more than a year. It also presents a new legal basis defining the scope and limits of the Constitution’s “speech or debate clause,” including which matters of cell phone communications may be considered official “legislative” matters and therefore protected of any disclosure to investigators.

Perry is a key figure who sought to help Trump replace the attorney general after the 2020 election with former Justice Department official Jeffrey Clark and get the Justice Department to reverse its conclusion that Biden was fairly elected, according to the House committee that investigated January. On June 6, 2021, Trump supporters attacked the US Capitol.

In December, Howell ordered the release of about 90 percent of the 2,209 documents found on Perry’s phone, finding that the “powerful public interest” The information contained in Perry’s texts, emails and attachments sought by the FBI under court order in August 2022 outweighed the need for secrecy in the historic election obstruction investigation. Trump was indicted last month on four counts of conspiring to overturn Joe Biden’s election victory by obstructing Congress, defrauding the government and depriving Americans of the right to have their votes counted.

Howell rejected Perry’s “categorical” assertion that all of his communications were considered “informal” inquiries in his official capacity as a member of Congress and were therefore protected from disclosure. Instead, the judge said Perry’s investigations into the legitimacy of the 2020 election results were closer to “purely personal or political” activities that courts have found exempt from protection, since they were conducted without investigation or formal authorization by Congress.

However, a three-judge panel rejected both Perry’s overall attempt to keep his communications off limits and Howell’s blanket granting investigators access to communications Perry had without the House’s express approval or of the committee.

“We disagree with the district court’s ruling that informal inquiry never constitutes legislative action. But we also reject Rep. Perry’s proposition that informal inquiry is still a legislative act,” wrote U.S. Circuit Judge Neomi Rao for the panel consisting of Judges Karen LeCraft Henderson and Gregory Katsas, the latter of whom wrote an opinion concordant. Rao and Katsas are Trump appointees who served in his administration, and Henderson was appointed by President George HW Bush.

The appeals court panel said that in December, Howell properly withheld 164 of Perry’s 611 communications with other House members because they concerned fundamental legislative actions such as legislation, votes and issues such as committee assignments and Republican caucus business. But the circuit court said Howell should have withheld any additional communication and not simply viewed discussions with other members about alleged fraud in the 2020 presidential election as political and “non-legislative.”

“While elections are political events, a Member’s deliberations on whether to certify a presidential election or how to evaluate information relevant to legislation on federal election procedures are classic legislative acts,” Rao wrote.

The panel also ordered Howell to “apply the proper standard” and individually review 678 messages from Perry with private outside parties, and 930 messages involving executive branch officials “regarding allegations of election fraud during the period leading up to the Congressional vote certifying the 2020 election.”

This standard consists of determining whether the underlying subject “is an integral part of the deliberative and communication processes by which Members participate in the deliberations of committees and the House with respect to the consideration, adoption or rejection of bills of law or with respect to other matters which the Constitution places within the framework of the law. the competence of one or the other House.

Peter Carr, a spokesman for the special prosecutor’s office, said by email: “We will decline to comment at this time.” »

John Rowley, Perry’s attorney, said in an emailed statement: “The D.C. Circuit’s decision is an unqualified vindication of Congress’s protection from intrusive and excessive investigations into the legislative deliberations of Members of Congress.” »

Rowley said the ruling rejected the Justice Department’s assertion that the investigation of individual lawmakers must be “authorized” by a committee or the House to be protected from forced disclosure, and established that communications “on matters within Congress’ jurisdiction – in this case, the January 6 certification of the presidential election and the bill that would have changed future election procedures are not “political,” but the manner in which members exercise their official functions.


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