A lawyer for Rep. Scott Perry, R-Pa., argued in a federal appeals court Thursday against the Justice Department’s attempt to access the contents of his phone.
The FBI seized Perry’s phone last year as part of the department’s investigation on January 6. Perry, an ally of former President Donald Trump who supported his efforts to overturn the results of the 2020 presidential election, sued the DOJ last year seeking the return of all cellphone data the FBI had seized. Perry’s lawyers dropped the case in October without giving an explanation.
Perry has argued that the government does not have the authority to search for the data because his phone contained confidential information protected by the speech or debate clause of the Constitutionthat gives legislators legal protections for legislative acts.
A three-judge panel of the USDC Circuit Court of Appeals pressed Perry’s attorney, John Rowley, about what scenarios the speech or debate clause protections apply to.
Rowley repeatedly argued that “speech within the legitimate legislative sphere” is protected by the clause.
“There is no reason, your honor, that privilege applies to a congressman’s office but not to his cell phone,” since members “can use their cell phones to communicate in a legislative manner,” Rowley said.
Rowley pointed to members of Congress who have been encouraged to vote by proxy during the Covid-19 pandemic.
“And for that reason, your honor, perhaps some time ago it made sense to limit the privilege protections to the workspace of congressmen, in your current office. He would tell the court that that is no longer the case, given the realities of technology,” he said.
Asked if the same protections apply to legislators’ communications with people outside of Congress, Rowley said he believes the principles are similar, as long as the communication is “conducted within the sphere of legitimate legislative activity” and for members to conduct an informal “fact finding.” often.
Perry, who chairs the conservative House Freedom Caucus, said in emergency motion filed in federal court in Washington, DC in August that his phone was seized by federal agents who approached him while he was vacationing with his family in New Jersey.
Agents had a search warrant for the device, and Perry recovered his phone the same day after agents imaged its data. After the seizure, Perry’s attorney, John Irving, said in a statement at the time that the Justice Department had informed him that Perry “is not the subject of his investigation.”
The warrant stated that the data on the phone would be taken to a Justice Department forensics lab in northern Virginia, but because the initial warrant only authorized the seizure of the phone, investigators would need a second warrant from a judge before they could analyze the data.
It’s unclear why Perry’s phone was seized. The congressman came under scrutiny by the House Jan. 6 Committee in the last Congress, which referred him and three other House Republicans, including then-House Minority Leader Kevin McCarthy, R-Calif. , to the House Ethics Committee for challenging the panel’s subpoenas. .
The committee said it had evidence from “multiple witnesses” alleging Perry’s involvement in an effort to install former Justice Department official Jeffrey Clark as acting attorney general during the final months of the Trump administration. Clark promoted Trump’s unsubstantiated claims of a stolen 2020 presidential election and wanted the Justice Department to intervene to challenge the results.
Perry’s phone was seized after agents executed a search warrant at Clark’s home in June and also seized the phone of John Eastman, a Trump lawyer who during the 2020 election wrote memos urging then-Vice President Mike Pence to cancel the results.
Following his election as Speaker of the House, McCarthy indicated that Republicans intended to investigate the work of the now-defunct House committee that investigated the January 6 riots. Last November, McCarthy sent a letter telling then-committee chair Bennie Thompson, D-Mississippi, to retain all records and transcripts and promised to hold hearings in the new Congress on the security lapses that led to the 2021 attack.
Last month, Perry refused to say he would recuse himself from any House Republican inquiry into federal investigations into the events surrounding the attack on the Capitol, despite being the subject of those investigations.
“Why should it be limited just because someone has made an accusation? Everybody in America is innocent until proven guilty,” Perry said in an interview on ABC’s “This Week.”