Rep. Scott Perry’s Messages About 2020 Election Fraud ‘Privileged’, Part of ‘Constitutional Duty,’ Judge Rules

Special Counsel Jack Smith arrives to remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. Trump was indicted on four felony counts for his alleged efforts to overturn the 2020 election. (Drew Angerer/Getty Images)

Last week, judges in the appellate court of Washington, D.C., ruled that special counsel Jack Smith’s office could not have the phone records belonging to Rep. Scott Perry (R-Pa.), which the FBI had seized.

“Representative Perry’s conversations with other Members concerned the passage of proposed legislation as well as the exercise of the constitutional duty to certify the electoral votes from the 2020 election. These communications were privileged,” wrote Judge Neomi Rao in the Sept. 5 opinion unsealed on Sept. 13 (pdf), ruling that the district court had incorrectly withheld privilege previously.

The district court had ruled that Mr. Perry’s conversations were “purely political” and any relation to the upcoming certification was only “incidental.”

“The district court inadequately considered the context of these conversations, which involved Member deliberations about upcoming votes,” Judge Rao wrote.

“While elections are political events, a Member’s deliberation about whether to certify a presidential election or how to assess information relevant to legislation about federal election procedures are textbook legislative acts protected by Gravel,” she wrote, citing a 1972 case when Sen. Mike Gravel received a copy of the Pentagon Papers.

Mr. Smith was appointed special counsel by the Justice Department (DOJ) in November 2022 to investigate crimes related to the events of Jan. 6, 2021, at the U.S. Capitol and former President Donald Trump’s alleged mishandling of classified documents. The 45th president, who is once again campaigning for the post for 2024, has been indicted in both cases.

As part of investigation, Mr. Smith has sought evidence from Trump allies regarding his challenge of the 2020 election results, such as the thousands of messages on Mr. Perry’s phone.

Phone Seizure

Mr. Perry used this phone to communicate with several other representatives about alleged fraud in the wake of the 2020 elections, as well as members of the executive branch and those outside of the federal government.

In August 2022, after the raid of President Trump’s Mar-a-Lago estate, a Pennsylvania judge approved a search warrant allowing the FBI to seize Mr. Perry’s phone and create a copy of its contents. Mr. Smith’s office did not immediately obtain access to it, and the FBI had to obtain a separate search warrant from the District Court of the District of Columbia to allow it.

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

“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. “As with President Trump last night, DOJ chose this unnecessary and aggressive action instead of simply contacting my attorneys.”

Mr. Perry had argued that his 2,219 messages were privileged from disclosure because “informal factfinding” by members of Congress constituted legislative acts, and therefore privileged speech.

The district court ruled that it was not, putting his communications into three categories: messages to people outside the government that was not privileged because it was informal factfinding, messages with people in Congress that were “too far removed” from legislative acts to be privileged, and messages with members of the executive branch that were “political” and not factfinding or privileged. A remainder of 164 messages were deemed privileged legislative acts.

Mr. Perry appealed the decision, and the appeals court disagreed with both arguments—that informal factfinding on the part of a congressman is always or never privileged speech—while still ruling in Mr. Perry’s favor and putting the order to disclose the messages on hold.

Mr. Smith’s office then argued that the court lacked jurisdiction over the matter because orders to disclose documents are “ordinarily not immediately appealable.”

Speech or Debate Clause

“The Speech or Debate privilege concerns the separation of powers; it is rarely invoked; and it is uniquely important to the fulfillment of governmental functions,” wrote Judge Rao, a Trump-appointee.

The clause protects members of Congress from lawsuits over legislative speech, that “For any Speech or Debate in either House, shall not be questioned in any other Place.”

Judge Rao noted it as a key safeguard to the separation of powers, one that helps ensure the independence of the legislature. A test for whether speech or an act is covered is also through consideration of whether it helps ensure such independence, she wrote.

The statute protects the majority of Mr. Perry’s messages from Mr. Smith’s executive branch investigation, as the court found that those additional communications were regarding the upcoming certification of the 2020 election ballots—a congressional duty.

The appeals court ruling omitted office newsletters sent between Congress members from “privileged” communications, as well as communications with media relations staff about press coverage.

The appeals court vacated the district court’s order the release the communications, and turned the case back to the district court “to apply the correct standard, consistent with this opinion.”