Court limits Jack Smith’s access to Scott Perry cell phone contents

A federal appeals court issued a setback to special counsel Jack Smith by largely siding with Rep. Scott Perry (R-Penn.), whose phone was seized by FBI investigators working on the Jan. 6 investigation.

The ruling from a three-judge panel on the U.S. Circuit Court of Appeals for D.C. shields from prosecutors Perry’s communications with other members of Congress dealing with the 2020 election.

The decision, handed down on Sept. 5 and unsealed Wednesday, determined that a lower court failed to consider some of his conversations to be covered by the Speech and Debate Clause. 

“Relying on the fact that the communications concerned election fraud and electoral results, the district court labeled them ‘textbook political conversations not protected by the Clause,’” Judge Neomi Rao wrote for the court.

“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.” 

Perry was a central figure in former President Trump’s effort to push the Department of Justice (DOJ) to investigate his baseless claims of voter fraud, introducing him to Jeffrey Clark, a DOJ attorney Trump mulled installing as attorney general given his interest in pushing such probes.

Perry’s cell phone was seized in August of last year, kicking off a public legal battle to block access to his communications.

But Perry dropped that suit last October, with his attorneys telling The Hill they were encouraged by “the cooperative spirit of the discussions” with the Justice Department.

A later sealed court battle, however, showed Smith and Perry remained at odds over access to the contents of his phone.

While the three-judge panel shielded some communications from Smith, it remanded several other issues to the lower court to review.

And it stopped short of condoning Perry’s argument that all his communications should be considered legislative work and therefore off the table to investigators. 

“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 court wrote. 

Smith could appeal the panel’s decision to the full court, though his office declined to comment on the suit or any plans to do so. 

The decision leaves tedious homework for U.S. District Court Judge Beryl Howell, who must now review many of the remaining contents of Perry’s phone “on a communication-by-communication basis.”