Court Blocks Jack Smith’s Bid to Obtain Rep. Scott Perry’s FBI-Seized Phone Records

Special counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump in Washington, on Aug. 1, 2023. (Drew Angerer/Getty Images)

A federal appeals court has blocked special counsel Jack Smith’s team from gaining access to seized phone records of Trump ally Rep. Scott Perry (R-Pa.), who has been fighting to keep the records protected.

A three-judge panel of the D.C. Circuit Court of Appeals issued a ruling (pdf) on Sept. 5 that vacates parts of a lower court ruling that gave Mr. Smith’s prosecutors access to around 2,000 records from Mr. Perry’s phone.

While the appeals court ruling remains under seal, a summary judgment posted in the docket indicates that the judges have sent the case back to a district court “to apply the correct standard” to some of Mr. Perry’s records.

Judge Neomi Rao, a Trump appointee, led the appeals court’s opinion, which effectively prevents the special counsel’s team from gaining access to Mr. Perry’s records pending further legal review.

It’s unclear where the case goes from here, with a spokesperson for Mr. Smith’s office declining comment when asked whether the special counsel’s team would appeal Tuesday’s decision.

A spokesperson for Mr. Perry did not immediately respond to a request for comment.

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Mr. Smith has indicted President Trump on charges related to the Jan. 6, 2021, certification of votes, accusing him of conspiracy to obstruct that day’s certification proceedings, among other alleged crimes.

President Trump maintains his innocence and has called the indictment part of a political hit job meant to undermine his 2024 presidential campaign.

Rep. Scott Perry (R-Pa.) and members of the House Freedom Caucus speak on the debt limit deal outside of the U.S. Capitol in Washington on May 30, 2023. (Mandel Ngan/AFP via Getty Images)

A separate order released on Sept. 5 by the appeals court gave both Mr. Perry’s lawyers and Mr. Smith’s team a week to indicate whether they think any parts of the ruling should remain secret.

“In the event the parties conclude that the record or any portion of it should remain under seal, the parties are directed to identify the proposed redactions and provide an explanation for each proposed redaction,” reads a summary order filed in the docket.

More Details

A phone belonging to Mr. Perry, an ally of former President Donald Trump, was seized one day after the former president’s Mar-a-Lago residence was raided by FBI agents in the summer of 2022.

Mr. Perry told The Epoch Times in August 2022 that three FBI agents had seized the phone from him, with the lawmaker adding that the agents made no attempt to contact his lawyer.

“I’m outraged—though not surprised—that the FBI under the direction of [Attorney General] Merrick Garland’s [Department of Justice (DOJ)], would seize the phone of a sitting Member of Congress,” the congressman said in a statement.

“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 added.

Not long after his phone was seized, Mr. Perry sued the Biden administration, asking a federal court in Washington to halt review of his phone data, compel government officials to return the data and any other property it seized, and prohibit officials from acquiring any other information until the matter is fully litigated.

On Dec. 28, 2022, U.S. District Court Chief Judge Beryl Howell rejected Mr. Perry’s bid to shield the records. Judge Howell, an Obama appointee, ruled that the DOJ could access 2,055 records from the lawmaker’s seized phone. She said that another three records could be partially accessed, while ruling that Mr. Perry correctly asserted privilege over 161 other records.

The legal fight over Mr. Perry’s records began before Mr. Smith was appointed special counsel last November but seems to have continued under Mr. Smith’s watch as he probes allegations of interference in the certification of the 2020 election.

Now, the appeals court’s decision on Sept. 5 rejects portions of Judge Howell’s ruling, with the summary judgment ordering it “vacated in part and remanded to the district court to apply the correct standard to Representative Perry’s communications with individuals outside the federal government, communications with members of the Executive Branch, and communications with other Members of Congress regarding alleged election fraud.”

Legal Issue

What the appeals court’s Tuesday ruling does is effectively say that the lower court applied the law imperfectly when considering Mr. Perry’s lawsuit.

The core legal issue for consideration is the court’s interpretation of the “speech or debate” clause of the U.S. Constitution, which gives members of Congress immunity from criminal proceedings that are tied to their official work.

Mr. Perry has argued that many of the records that Mr. Smith’s team is seeking meet this definition because they arose in the course of legislative duties and so should not be made available to prosecutors.

Mr. Smith’s team is seeking the records as an investigation by the Democrat-led House Jan. 6 committee last year found that Mr. Perry was in frequent contact with Trump White House officials in the weeks before the Jan. 6, 2021, capitol breach.

In her decision, Judge Howell said that Mr. Perry had sought to protect “random musings with private individuals” as well as “political discussions with attorneys from a presidential campaign” and “state legislators concerning hearings before them about possible local election fraud.”