Federal judges question Perry’s claim that Constitution protects his cellphone data

A panel of federal judges on Thursday weighed efforts by Rep. Scott Perry (R-Pa.) to shield information copied from his phone from being used by federal investigators in connection with the Jan. 6 investigation.

FBI officials seized Perry’s phone last August, creating a digital duplicate before returning it to the lawmaker.

Perry has been challenging the Justice Department’s ability to use the data, a matter that has played out publicly as well as in sealed proceedings only recently disclosed.

Attorneys for Perry have argued that the material from his phone should be off-limits to prosecutors, protected by the speech or debate clause of the Constitution.

John Rowley, an attorney for Perry, argued the data on the lawmaker’s phone is an extension of his official role, one the Constitution deems protected from “question[ing] in any other place.”

“There’s no reason, your honor, that speech, that privilege applies to a congressman’s office, but not to his cellphone,” Rowley said in proceedings before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

The interest in Perry’s phone came after he attended numerous meetings regarding planning for efforts to keep Donald Trump in power and also introduced the former president to Jeffrey Clark, a lawyer Trump mulled installing as attorney general as a way to propel an investigation into his baseless claims of election fraud.

But judges questioned how broadly the speech and debate clause should be interpreted. 

“How is it similar to things like speaking on the floor, casting a vote, deliberating and debating about legislation?” asked Judge Neomi Rao, a Trump appointee.

Judge Gregory Katsas, a fellow Trump appointee, offered a similar question.

“It’s not the cellphone that makes this odd, it’s that the communication can be to anyone in the universe,” said Katsas.

The judges similarly sounded skeptical of the Justice Department’s argument that Perry’s efforts at “fact finding” related to the 2020 election were not protected by the clause because he was not a member of a committee conducting investigative activity.

“Why wouldn’t an individual member’s fact-finding be covered?” Rao asked.

In October of last year, Perry dropped his suit challenging the use of his phone records.

“We’re pleased with the cooperative spirit of the discussions that have taken place, and we have voluntarily dismissed our motion for an injunction. We intend to continue those constructive discussions to resolve the matter. We have no further comment at this time,” attorney John S. Irving said in a statement to The Hill at the time.

But a second legal battle waged later would take place through sealed proceedings, with U.S. District Court Chief Judge Beryl Howell ruling in a sealed order that Perry had no claim to keep his phone data from investigators.

The matter could have wide implications for congressional power, particularly as former Vice President Mike Pence prepares to launch his own legal battle to claim his role leading the Senate on Jan. 6, 2021, protects him from having to cooperate with a subpoena from the Justice Department.