Appeals court to hear dispute over Rep. Scott Perry’s phone in January 6 special counsel probe

By Katelyn Polantz, CNN Reporter, Crime and Justice

A federal appeals court will hear a dispute over Justice Department investigators accessing Rep. Scott Perry’s cell phone in a case that could affect special counsel Jack Smith’s ability to get information from him and other members of Congress.

The case, currently before the DC Circuit Court of Appeals, will test crucial questions for both the ongoing grand jury probe and for the separation of powers, according to a newly released court filing — the first made public in the sealed case.

The legal dispute arises from prosecutors’ inquiries around Perry, a Pennsylvania Republican who played a central role in supporting former President Donald Trump’s efforts to overturn the 2020 election.

A three-judge appellate panel will consider whether the Constitution protects US senators and representatives from scrutiny of their “informal” legislative efforts and whether constitutional protections around Congress mean members’ communications with private parties and members of the executive branch can be kept secret.

The line of questioning disclosed in a court order on Thursday implies that Perry’s lawyers are arguing that prosecutors shouldn’t be able to access communications he may have had with the White House at the end of Trump’s presidency and any record of steps he may have taken in advance of the January 6, 2021, congressional vote to certify the presidential election.

In the lead-up to January 6 after the election, Perry was in contact with Trump and texted with then-White House chief of staff Mark Meadows, pushing to replace the US attorney general with an election fraud sympathizer.

CNN previously confirmed that the case is over the Justice Department’s ability to access data from Perry’s cell phone. The circuit court hasn’t disclosed that the court fight involves Perry, and much of the documents in the case are still under seal.

Federal investigators had seized Perry’s phone last August, imaging it then seeking a second search warrant to access its contents.

But Perry challenged the investigators’ ability to take that step, citing protections around Congress under the Constitution’s Speech or Debate Clause, which says senators and representatives cannot be questioned.

In practice, that has meant members of Congress’ legislative papers and offices cannot be scrutinized by other parts of the federal government, including the Justice Department, and their votes and work as legislators can’t become evidence in trials and grand jury proceedings.

A lower-court judge, Beryl Howell of the DC District Court, greenlit the investigators obtaining material, according to the court record, but the circuit has paused that while legal issues are still being argued.

In addition to the Speech or Debate Clause questions, the Circuit Court will also look at whether it has jurisdiction to hear the case.

The case is set for oral arguments on February 23, and some of those proceedings will be public. The case will be heard by three Republican appointees: Karen Henderson, Greg Katsas and Neomi Rao.

Both Republican and Democratic leadership in the US House made filings in the case as well, seeking to unseal the docket in Perry’s case in order to protect the House of Representative’s interests and preserve the Speech or Debate Clause, CNN previously reported.

The Reporters Committee for Freedom of the Press also has said that the appeal shouldn’t be litigated in secret.

The case is one of at least eight proceedings related to the Smith’s investigations around Trump that are taking place under seal and could have major implications for constitutional questions and for the special counsel probe.

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CNN’s Sara Murray contributed to this report.