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Court sets strict limits on Jan. 6 probe’s access to Rep. Perry’s phone

2023-10-06 00:00:00.0 华盛顿邮报-华盛顿特区原网页

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

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

The opinion, which the Justice Department could appeal, prolongs a secret dispute that has tied up the search of the leading House conservative lawmaker’s phone data for more than a year. It also charts new legal ground defining the scope and limits of the Constitution’s “Speech or Debate Clause,” including what subjects of cellphone communications may qualify as official “legislative” business and thus shielded from 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 finding that Biden had been elected fairly, according to the House committee that investigated the Jan. 6, 2021, attack by Trump supporters on the U.S. Capitol.

In December, Howell ordered the release of about 90 percent of 2,209 documents found on Perry’s phone, finding that the “powerful public interest” 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 federally indicted last month on four counts of plotting to subvert Joe Biden’s election victory through obstructing Congress, defrauding the government and depriving Americans of the right to have their votes counted.

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

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

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“We disagree with the district court’s holding that informal fact-finding is never a legislative act. But we also reject Rep. Perry’s proposition that informal fact-finding is always a legislative act,” U.S. Circuit Judge Neomi Rao wrote for the panel with judges Karen LeCraft Henderson and Gregory Katsas, the latter of whom wrote a concurring opinion. Rao and Katsas are Trump appointees who served in his administration, and Henderson was appointed by President George H.W. Bush.

The appeals court panel said Howell in December properly withheld 164 of 611 of Perry’s communications with other House members because they concerned core legislative actions such as legislation, votes, and matters such as committee assignments and Republican caucus affairs. But the circuit court said Howell should have withheld additional communications and not simply deemed discussions with other members about alleged fraud in the 2020 presidential election as political and “nonlegislative.”

“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,” Rao wrote.

The panel also ordered Howell to “apply the correct standard” and individually review 678 of Perry’s messages with private outside parties, and 930 messages involving executive branch officials “regarding alleged election fraud during the period before Congress’s vote certifying the 2020 election.”

That standard is whether the underlying subject is “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.”

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

John Rowley, an attorney for Perry, said in an emailed statement, “The D.C. Circuit’s decision is a full-throated vindication of Congress’ protection from intrusive and overreaching inquiry into the legislative deliberations of Members of Congress.”

Rowley said the ruling rejected the Justice Department’s contention that individual lawmakers’ fact-finding must be “authorized” by a committee or the house to be protected from compelled disclosure, and established that communications “about matters within Congress’ jurisdiction — in this case, the January 6th certification of the presidential election and proposed legislation that would have changed future election procedures — are not ‘political,’” but the manner through which members carry out their official duties.

The Jan. 6 insurrection The report: The Jan. 6 committee released its final report, marking the culmination of an 18-month investigation into the violent insurrection. Read The Post’s analysis about the committee’s new findings and conclusions.

The final hearing: The House committee investigating the attack on the U.S. Capitol held its final public meeting where members referred four criminal charges against former president Donald Trump and others to the Justice Department. Here’s what the criminal referrals mean.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6. Here’s what we know about what Trump did on Jan. 6.

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