Court blocks DOJ review of Scott Perry’s phone in Jan. 6 probe

© Carolyn Kaster/AP Rep. Scott Perry (R-Pa) on Capitol Hill in April. Perry says his cellphone was seized Aug. 9 by FBI agents carrying a search warrant. The circumstances surrounding the seizure were not immediately known.

The House of Representatives has asked to join a secret court battle that, since August, has blocked the Justice Department from reviewing the contents of Rep. Scott Perry’s (R-Pa.) phone and related communications in a criminal investigation of events surrounding the Jan. 6, 2021, Capitol attack, according to people familiar with the matter.

House Speaker Kevin McCarthy (R-Calif.) and Minority Leader Hakeem Jeffries (D-N.Y.) threw bipartisan support to the request filed Friday after a U.S. appeals court last week put the search of Perry’s phone data on hold pending appeal, according to House leaders and court records. Perry’s appeal, fast-tracked for oral argument Feb. 23, sets the stage for a constitutional test over the scope of immunity held by members of Congress from criminal investigation by the Justice Department under the Constitution’s “speech or debate clause,” which protects legislative work from executive branch interference.

The existence of the Jan. 25 court order preventing the Justice Department from accessing the Pennsylvania Republican’s phone was publicly docketed, but its subject matter remains under seal. Its connection to Perry’s records was first reported by Politico and confirmed by people familiar with the matter.

While Perry is the only lawmaker whose phone is publicly known to be sought by the department, the battle could have near-term implications for him and three other lawmakers referred to the House Ethics Committee by the House panel investigating the Jan. 6 Capitol attack for allegedly failing to comply with its subpoenas. In addition to Perry, the House committee named McCarthy, Reps. Jim Jordan (R-Ohio) and Andy Biggs (R-Ariz.), saying they “likely have material facts regarding President Trump’s plans to overturn the [2020 presidential] election.”

The litigation could delay or potentially curtail federal investigators working with special counsel Jack Smith, after former Trump aides have similarly tried to assert executive privilege to shield the confidentiality of their conversations with Trump from a grand jury under the Constitution’s separation-of-powers doctrine. President Biden has rejected his predecessor’s claims of executive privilege with respect to the Jan. 6 investigation. But House leaders from both parties concluded that at least reviewing Perry’s case and weighing in on its impact on Congress’s constitutional independence is in its best interests, according to people familiar with the matter, who spoke on the condition of anonymity to comment on matters under court seal.

McCarthy spokesperson Mark Bednar acknowledged the House intervention in the Perry litigation, stating“The Speaker has long said that the House should protect the prerogatives of Article I [of the Constitution]. This action indicates new leadership is making it a priority to protect House equities.”

Jeffries told reporters that the decision to intervene in the case was unanimous among the Speaker, leader and whip of both parties, CNN reported. “It was a unanimous vote, in terms of the bipartisan legal group, related to the institution of the House of Representatives,” Jeffries told reporters Monday.

Perry’s attorneys and a spokeswoman for the Justice Department declined to comment. Perry’s press secretary did not respond to a request for comment, but an office representative has said the congressman had condemned the Jan. 6 attack and emphasized that he was a witness, not the subject, of the Justice Department investigation.

Perry is a key Jan. 6 figure named more than two-dozen times in the House committee’s final report. The committee said its investigation showed Perry worked with former Justice Department official Jeffrey Clark and former Trump chief of staff Mark Meadows, seeking to install Clark as the acting attorney general after the 2020 election. At the same time, Clark was pushing Trump’s false claim that the election was stolen and trying to get the department to reverse itself and challenge Biden’s election victory.

The FBI’s investigation of Perry surfaced on Aug. 18, when Perry filed a federal lawsuit in Washington to block the Justice Department from reviewing the contents of his phone, which agents seized and returned to him after downloading its material on Aug. 9, pursuant to a search warrant for it, and associated records with provider AT&T.

A person familiar with the situation told The Washington Post at the time that the phone was taken as part of a department investigation into efforts to substitute Trump allies for certified electors from some states Joe Biden won so that House Republicans could eventually decide the winner. Federal agents on the same day in June seized the cellphone of John Eastman, a lawyer who pushed false claims of mass voter fraud in 2020, and also conducted a search at Clark’s home.

Perry’s lawsuit cited the Constitution’s “Speech or Debate clause,” which holds that lawmakers “shall not be questioned in any other Place” outside Congress regarding their legislative work, a provision to protect the independence of legislators from arrest or litigation over official duties. Perry also asserted that some content on his phone was protected by attorney-client privilege, marital privilege and privacy.

The Justice Department proposed an alternative, two-stage review: Either he agree to negotiate over what records qualified as not subject to disclosure after a simultaneous review by him and the government, or prosecutors would seek a second court-ordered warrant after establishing probable cause that a crime had been committed and review his communications under a court-approved process anyway, Perry alleged.

Perry objected that under binding court precedent in Washington, the government could not review potentially privileged materials even using a “filter-team” before obtaining a lawmaker’s consent. But Perry dropped his case without explanation in October after Chief U.S. District Judge Beryl A. Howell of D.C., took over the case, apparently because of Howell’s jurisdiction as chief judge over grand jury related matters.

The contours of the appellate court fight are not clear, but it similarly concerns Perry’s emergency motion to put the examination of his phone-related data on hold pending review of a Dec. 28 order by Howell, court records indicate. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, composed of Karen Henderson, appointed by George H.W. Bush, and Trump appointees Gregory Katsas and Neomi Rao, granted the stay last Wednesday, prompting a flurry of additional litigation before the House filed its third-party motion Friday.

Legal analysts said the fight likely bears on not only what information is covered by congressional immunity but, importantly, who gets to decide and how. For example, Perry’s communications about efforts by states to draft substitute presidential electors or to appoint Clark as attorney general might not qualify as legislative work, but conversations about a potential vote by the House on whether electors were qualified could be.

Since a 2007 D.C. Circuit ruling that held that FBI agents violated the Constitution when they searched the office of then-Rep. William J. Jefferson (D-La.) in a probe into his business dealings in Africa, lawmakers have, with increasing success, derailed Justice Department corruption investigations by preventing the FBI from using wiretaps, accessing evidence or interviewing aides in connection with official business. Jefferson eventually served more than five years in prison on charges involving bribery of foreign officials after being caught with $90,000 in cash in his freezer that the government said was intended for the vice president of Nigeria.

Under the Jefferson case precedent, a judge — in this case Howell — can decide what records to release to the Justice Department after searching a copy of a lawmaker’s computer files for terms provided in a government search warrant, and privately reviewing any objections raised by the lawmaker to the handover of specific records. But Perry’s lawyers argued in August that the lawmaker alone, likely in consultation with the House general counsel’s office, should be allowed to decide what is privileged, asserting that a review by a member of the judicial branch of government raises the same problems as a review by an executive branch team.

Perry’s attorneys argued that prosecutors should not be given “carte-blanche” to root around his phone-associated data in hopes of advancing their probe, especially now that smartphones hold a digital record of nearly every aspect of a person’s life.

Legal analysts said based on the facts alleged in Perry’s lawsuit and the process set up by the D.C. Circuit in Jefferson’s case, it could be Howell’s review of Perry’s records that is in question. In other Jan. 6-related cases, Howell has found that executive privilege claims can be overcome if prosecutors can show that a witness likely possesses information that is unavailable elsewhere, ordering aides to former vice president Mike Pence to testify to a Jan. 6 grand jury in September.

In December, Howell also made public at the government’s request that she had granted Justice Dept. investigators access to 37 emails between Perry and Trump-connected attorneys Eastman, Clark and Ken Klukowski, an aide to Clark, as well as 331 documents from Clark about his Jan. 6 role based on drafts of a potential autobiography.

That review had to do with attorney-client privilege claims over roughly 130,000 records obtained by investigators from search warrants, in which the Justice Department prioritized access to emails sent to or from Perry. The judge said the government asked her to disclose her orders from June and September where she released the emails to investigators, the results of a government “filter-team” review that provided “robust protections” preserving the confidentiality of attorney-client communications and work product.