WASHINGTON (CN) — A D.C. Circuit panel determined many of Representative Scott Perry’s conversations with fellow members of Congress and the Trump administration about overturning the 2020 election are protected, and thus cannot be used by special counsel Jack Smith, according to an opinion made public on Wednesday.
The three-judge panel found federal investigators' efforts to gain access to the Pennsylvania Republican’s phone records violated his immunity under the Constitution’s Speech or Debate clause, which shields members of Congress from legal action over their legislative actions.
U.S. Circuit Judges Neomi Rao, Gregory Katsas and Karen Henderson ordered the federal judge who had sided with Smith to reconsider, on a message-by-message basis, whether to shield the congressman’s communications with White House officials and others outside of Congress.
Messages between Perry and other lawmakers about the 2020 election certification vote, and a vote on proposed reform legislation, are “quintessential legislative acts” in the panel’s eyes and are immune.
“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,” wrote Rao, a Donald Trump appointee, in the court’s opinion filed last week under seal.
Henderson, a George H.W. Bush appointee, joined Rao in the opinion.
Katsas, another Trump appointee, filed a concurring opinion. He agreed with his colleagues generally but took a more narrow view of the lawmaker’s privilege.
“The court rightly concluded that the category of ‘informal factfinding’ proposed by Representative Perry included much unprotected material, but I do not read the Court’s opinion to foreclose protection for … informal, non-coercive information gathering,” Katas wrote.
In the lower court U.S. District Judge Beryl Howell, a Barack Obama appointee, ruled that Perry’s communications, which he deemed “informal fact finding” about the 2020 election, were not protected by the Speech and Debate clause and couldn't be shielded from investigators.
The Circuit panel partially agreed with Howell on that point, but found the judge should not have categorically rejected Perry’s inquiries. Some acts may count as legislative acts established by the 1972 ruling Gravel v. United States, which determined the Speech and Debate clause may extend to congressional aides.
The FBI seized Perry’s phone in August 2022, before Smith’s appointment as special counsel, seeking approximately 2,200 communication records from his phone, including more than 1,500 between the congressman and people outside the House.
Investigators received a court-approved search warrant to seize the phone, but then sought a second warrant to clarify their ability to review Perry's communications with other lawmakers, executive branch officials and others regarding the 2020 election.
The House’s Select Committee on the Jan. 6 Attack identified Perry as a liaison for Trump and key players in the efforts to subvert the 2020 election and allow the ex-president to remain in the White House despite his electoral defeat.
Former Justice Department attorney Jeffrey Clark — one of the 18 people charged along with Trump in the election subversion case in Georgia state court — was one of those key players who attempted to use his position to open sham election criminal investigations and influence state legislatures with false claims of election fraud.
Clark was also one of six unnamed and unindicted co-conspirators listed in Smith’s federal indictment of Trump over his election subversion efforts.
The Speech and Debate Clause is meant to provide separation of powers protection for lawmakers and prevent them from being arrested or hauled into court over their legislative conduct in Congress. Specifically, the clause shields “any speech or debate in either house” so that lawmakers “shall not be questioned in any other place.”
It is unclear whether Smith will appeal the circuit’s opinion and bring it before the full bench of the Circuit, or to the Supreme Court.
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