Judge Rejected Congressman’s Bid to Shield Emails From DOJ

Judge Rejected Congressman’s Bid to Shield Emails From DOJ
Rep. Scott Perry (R-Pa.) on Capitol Hill on March 10, 2021. (Ting Shen-Pool/Getty Images)
Zachary Stieber

A federal judge rejected a U.S. congressman’s bid to shield thousands of records from U.S. authorities investigating potential crimes linked to the 2020 election, according to filings unsealed on Feb. 24.

U.S. District Court Chief Judge Beryl Howell said that the U.S. Department of Justice can access 2,055 records from the personal cellphone of Rep. Scott Perry (R-Pa.) in a Dec. 28, 2022 order that was made public on Friday.

Another three records could be accessed partially while Perry properly asserted privilege over 161 other records, Howell, an Obama appointee, ruled.

Perry’s phone was seized by FBI agents in the fall of 2022 after government investigators uncovered evidence that Perry was using his phone to communicate with people allegedly engaged in efforts to overturn the 2020 presidential election. Agents extracted the contents of the phone.

The warrant did not permit a search of the contents, prompting officials to ask for a fresh warrant that would enable a search. After the warrant was approved, Perry asked the court to block investigators’ access to thousands of records, arguing they fell under the Speech or Debate Clause of the U.S. Constitution.

Howell agreed that records integral to Perry’s votes on Jan. 6, 2021, during the certification of electoral votes, were covered by the clause but rejected the position that records covering Perry’s communications as he sought to examine allegations of election fraud were protected.

Howell described some of the messages as “random musings with private individuals touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania.”

Because the efforts were not authorized by a congressional subcommittee or initiated in a “procedurally regular fashion,” they were “untethered from any formal legislative activity,” Howell said. Disclosure of the records to authorities thus would not threaten the integrity or independence of Congress, according to the judge.

Among the records Howell let authorities access were communications with other members of Congress concerning alleged fraud.

Perry said in filings that have not been unsealed that the clause covered those communications.

“This astonishing view of the scope of the legislative privilege would truly cloak Members of Congress with a powerful dual non-disclosure and immunity shield for virtually any of their activities that could be deemed information gathering about any matter which might engage legislative attention,” Howell said. “At the same time, a Member could delay, if not effectively bar, investigative scrutiny and avoid not only criminal or civil liability, but also the public reputational harm that such scrutiny could engender, particularly in the view of voters.”

The fact that the phone was seized and Perry was contesting investigators’ attempt to access the contents were widely known but some of the details of the case, including Howell’s order, were made public for the first time with the unsealing of the documents.

Perry did not immediately respond to a request for comment and has not appeared to comment on the newly unsealed filings.

Perry told The Epoch Times in 2022 that he was outraged that the FBI seized his phone. “My phone contains info about my legislative and political activities, and personal/private discussions with my wife, family, constituents, and friends. None of this is the government’s business,” he said at the time.
Another newly unsealed document showed that Howell in January rejected Perry’s request to stay her order pending appeal. She said, in part, that Perry was unlikely to succeed in his appeal of her order. Howell’s Jan. 4 order, however, was stayed the following day by the U.S. Court of Appeals for the D.C. Circuit.

Appeals Court

Howell also ordered the filings unsealed over objections from Perry, who said their disclosure would “severely prejudice him.” The government said that certain redacted filings could be made public, given facts outlined in them had already been made known.

Howell said that the the unsealing was justified because of the “common-law right of public access to judicial records.” She asserted that “public release of these redacted judicial records would result in no additional prejudice to Rep. Perry and, if at all, provide greater context to the public.”

One of the reasons Howell moved to unseal the records was because some facts about the case were outlined this week as lawyers for the parties appeared before the appeals court to deliver arguments on their positions on Howell’s order rejecting Perry’s invocation of privilege.

John Rawley, one of Perry’s attorneys, said that the constitutional clause covers all communications sent or received by a member of Congress, provided the messages deal with a legislative purpose.

John Pelletieri, an attorney for the Department of Justice, told the court that an act isn’t legislative “unless it’s it is connected to the investigative factfinding functions of Congress as a whole.”

The appeals court judges have not yet ruled on Perry’s appeal.

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