A lawyer for Rep. Scott Perry, R-Pa., argued before a federal appeals court Thursday against the Justice Department’s bid to access the contents of his phone.
The FBI seized Perry’s phone last year as part of the Justice Department’s Jan. 6 investigation. Perry, an ally of former President Donald Trump who supported his efforts to overturn the 2020 presidential election results, sued the Justice Department last year requesting the return of all cellphone data the FBI had seized. Perry’s lawyers dropped the case in October without providing an explanation.
Perry has argued that the government does not have the authority to search the data because his phone contained sensitive information protected by the “speech or debate” clause of the Constitution, which grants lawmakers legal protections for legislative acts.
A panel of three judges on the U.S. Circuit Court of Appeals for Washington, D.C., pressed Perry’s lawyer, John Rowley, about what scenarios the protections of the speech or debate clause apply to.
Rowley repeatedly argued that “speech within the legitimate legislative sphere” is protected under the clause.
“There’s no reason, your honor, that privilege applies to a congressman’s office but not his cellphone” given that members “can use their cellphones to communicate on legislative manners,” Rowley said.
Rowley pointed to members of Congress who were encouraged to vote by proxy during the Covid-19 pandemic.
“And so for that reason, your honor, perhaps some time ago it made sense to limit the protections of the privilege to congressmen’s workspace, in his present office. I would submit to the court that that is no longer the case, given the realities of technology,” he said.
Asked whether the same protections apply to lawmakers’ communications with people outside of Congress, Rowley said he believes the principles are similar, provided that the communications are “conducted within the sphere of legitimate legislative activity” and that members conduct informal “fact finding” often.
The Justice Department argued that Perry’s communications should not be protected under the speech or debate clause because they were not tied to any real legislative purpose.
John Pellettieri, a lawyer for the Justice Department, argued that informal fact-gathering by any one representative who is not acting with the authorization of a congressional committee or subcommittee is not subject to the clause and therefore not protected by it.
Pellettieri said protections under the speech and debate clause can go beyond the specific text of the Constitution only “when necessary to effectuate the purposes of the clause” and when “the conduct is integral to a legislative activity.”
“But I would say insofar as this notion of a nondisclosure privilege doesn’t serve the very purposes of applying it to public acts, doesn’t serve the purposes it’s intended to serve, it should not be extended any further,” Pellettieri said.
Oral arguments in the case, which has so far proceeded entirely under seal, were made partly public after a motion from the Reporter’s Committee for Freedom of the Press.
Perry was not seen in court Thursday and was not mentioned by name during the roughly 40 minutes of public argument.
Perry, who chairs the conservative House Freedom Caucus, said in emergency motion filed in Washington federal court in August that his phone was seized by federal agents who approached him while he was on vacation with his family in New Jersey.
The agents had a search warrant for the device, and Perry got his phone back the same day after agents created an image of 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 a target of its investigation.”
The warrant indicated the phone data would be taken to a Justice Department forensic lab in Northern Virginia, but because the initial warrant authorized only the seizure of the phone, investigators would need a second warrant from a judge before they could go through the data.
It is unclear why Perry’s phone was seized. He 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 of California, to the House Ethics Committee for defying its 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 the acting attorney general during the final months of the Trump administration. Clark promoted Trump’s baseless claims of a stolen 2020 presidential election and wanted the Justice Department to step in to challenge the results.
Perry’s phone was seized after agents searched Clark’s home with a warrant in June and also seized the phone of John Eastman, a Trump lawyer who wrote memos during the 2020 election urging then-Vice President Mike Pence to overturn the results.
Upon his election as House speaker, McCarthy indicated that Republicans intend to probe the work of the now-defunct House committee that investigated the Jan. 6 riot. In November, McCarthy sent a letter telling then-committee Chair Bennie Thompson, D-Miss., to preserve all records and transcripts and vowed to hold hearings in the new Congress about the security failures that led to the attack in 2021.
Perry last month declined to say he would recuse himself from any House GOP investigation of federal probes into the events surrounding the Capitol attack, despite being a subject of those investigations.
“Why should I 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.”