A federal appeals court in Washington grappled with what constitutional protections members of Congress might have for content on their cellphones, during oral arguments Thursday related to a criminal grand jury probe.
Much of the case at the U.S. Court of Appeals for the District of Columbia Circuit remains sealed, and the judges and parties were careful Thursday not to mention the name of the lawmaker or the subject of the Justice Department investigation.
Several media reports say the member of Congress is Rep. Scott Perry, R-Pa., a Donald Trump ally whose phone was seized by federal investigators last year. Perry initially filed a civil lawsuit last year seeking an order barring any Justice Department search of his seized phone before dropping the suit in October.
The lawmaker has appealed a sealed ruling by Judge Beryl Howell of the U.S. District Court for the District of Columbia, which attorneys and the judges referred to during arguments as allowing access to the lawmaker’s phone because it involved “informal” communications.
John Rowley, the attorney for the lawmaker, told the judges Thursday that the communications at issue dealt with two distinct issues: the joint session to certify Electoral College votes on Jan. 6, 2021, and gathering information about the “For the People Act,” a bill Democrats introduced in the House days before the Jan. 6 attack on the Capitol.
Judge Neomi Rao, one of the three judges on the panel, said the panel would have to draw a “tricky line” between the grand jury investigation and protections members of Congress have for communications. Rao and Judge Gregory G. Katsas both said cases supported immunity under the Speech or Debate Clause for congressional committees that communicate as part of their work on potential legislation.
But the judges grappled with where to draw the line for individual members and whether those communications could be protected from both disclosure and use as evidence.
Lawmaker protections
Rowley told the three-judge D.C. Circuit panel that an individual lawmaker’s communications to gather information about issues pending before Congress should be protected.
“That is an absolute privilege. It may be inconvenient for law enforcement, but it is an absolute privilege,” Rowley said. “This fact-finding was not hypothetical, it was done in the legislative sphere.”
John Pellettieri, an attorney for the Justice Department, argued that a ruling that backed such a privilege would create “rules that effectively cloak members of Congress with broad immunity” from any kind of investigation.
“Every facet of American life comes before Congress” and could be subject to the protection under the lawmaker’s argument, Pellettieri said.
Pellettieri argued that individual lawmakers’ communications with members of the public, outside of a formal or informal investigation, should not be protected by the privilege.
Katsas asked whether lawmaker communications should be protected when discussing pending legislation with other members of Congress or constituents. Pellettieri responded that conversations with constituents would not be covered but conversations with fellow members would be.
“That is a bit of an odd line” to draw, Katsas said.
Case closed
The panel heard more than an hour of public argument in the case before entering a closed session. The floor with the courtroom was closed to the public for that closed portion of the argument, and attorneys left the courthouse about 30 minutes later.
It was not clear whether any decision in the case would be public. The judges in the case only opened a portion of the arguments to the public after the Reporters Committee for Freedom of the Press requested to unseal the case earlier this month.
FBI agents seized Perry’s phone last August while he was on vacation with his family, the Pennsylvania Republican said in a statement at the time. In response to the search, Perry accused the DOJ of a partisan attack on him and invoked the search of former President Trump’s private club, Mar-a-Lago, that occurred a few days later.
A representative of Perry’s office could not be immediately reached for comment Thursday, and the attorneys in the case declined to comment.
The three judges — Karen L. Henderson, Katsas and Rao — were appointed by Republican presidents. Katsas and Rao were appointed by Trump, and Henderson was appointed by George H.W. Bush.
The limits of Speech or Debate immunity surfaced most recently in a Georgia grand jury probe of efforts to overturn the 2020 presidential election result in the state. Prosecutors issued a subpoena for Sen. Lindsey Graham, R-S.C., seeking his testimony about several calls he had with Georgia state officials about elections there.
Graham challenged the subpoena and appealed an initial court ruling that he would have to testify in the case.
Rather than quash the subpoena entirely, a federal appeals court in Atlanta ultimately ruled that Graham would have to assert his immunity against individual questions. The Supreme Court ultimately declined to rule in the case, and Graham testified last year.
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