Scott Perry, the far-right House Freedom Caucus chairman, is in a legal battle with the justice department for his work with Donald Trump allies to overturn the 2020 election results.
Perry, a congressman from Pennsylvania whose belated vote and those of caucus allies helped elect Kevin McCarthy as speaker, has been waging a legal fight for months to block the Department of Justice (DoJ) from accessing his cellphone, which was seized last August as part of the DoJ’s sprawling January 6 inquiry and Trump’s efforts to thwart Joe Biden’s election with false fraud claims. A federal appeals court in DC is slated to hear arguments about accessing Perry’s phone on Thursday.
The legal dustup between Perry and the DoJ involves the US constitution’s speech or debate clause, which Perry has cited to stop the department from accessing his phone. The clause typically protects members’ legislative work from legal scrutiny, but does not protect potential criminal actions involving non-legislative matters, say ex-prosecutors.
Perry, whose lawyer has said the DoJ informed Perry he was not a target after his phone was seized, was perhaps Trump’s most zealous House ally when he sought to overturn his loss with baseless charges that the election was rigged.
The justice department’s efforts to gain access to Perry’s cellphone stem partly from Perry’s role introducing Trump to Jeffrey Clark, a former senior DoJ environmental lawyer who plotted with Trump to make Clark the acting attorney general in an abortive scheme to help Trump push election fraud myths in Georgia and other key states.
Federal agents seized Perry’s cellphone after other agents raided Clark’s Virginia home last June and took his cellphone as part of the DoJ inquiry.
Perry also exchanged at least 62 emails with Trump’s chief of staff Mark Meadows, including some about election conspiracies such as “Italygate”, a wacky fantasy about how an Italian defense contractor worked with top CIA officials to use military satellites to switch votes from Trump to Biden.
Meadows was reportedly subpoenaed in January by a grand jury in DC as part of the special counsel’s probe into January 6 and Trump’s efforts to stay in power despite losing the election.
Former prosecutors say Thursday’s hearing could lead to a ruling that allows investigators some access to communications on Perry’s cellphone that involve potential criminal conduct.
“A member of Congress has a legitimate privilege under the speech or debate clause, which prevents a member from being questioned about legislative matters,” former US attorney for eastern Michigan Barbara McQuade told the Guardian.
“That extends to measures stored on their phones. But that does not mean that a member of Congress can never be questioned or investigated. Text messages on the cellphone could provide evidence of criminal intent in efforts to thwart the outcome of the election.”
Perry’s attorney John Irving declined to comment for this piece.
When Perry’s phone was seized while he was on vacation last August, the congressman said he was “outraged, though not surprised that the FBI would seize the phone of a sitting member of Congress”.
Perry’s legal skirmish with the DoJ widened when a five-person House panel –including McCarthy and Democratic minority leader Hakeem Jeffries – voted last month to intervene and support Perry’s stance invoking the speech or debate clause.
On another front, Perry was one of four members, including McCarthy who refused to cooperate with the House select committee on January 6, prompting the panel to refer them to the House ethics committee for scrutiny.
To be sure, the House January 6 panel and other records reveal that Perry was deeply involved with Clark and Meadows in plans to help Trump stay in office by promoting false charges of fraud.
On 21 December 2020, Perry and about ten other members met with Trump, Meadows and Trump’s personal lawyer Rudy Giuliani to discuss ways to thwart Biden’s win. Perry has said that the next day he “obliged” Trump by introducing him to Clark at a White House meeting after touting him as a DoJ ally.
Trump briefly tried to make Clark the acting attorney general to push phony election fraud claims in key states until Jeffrey Rosen, the acting attorney general, and other top DoJ and White House lawyers told Trump on 3 January that such a move would spur mass resignations at the justice department.
Further, the House January 6 panel hearings last year revealed text messages between Perry and Meadows on 31 December 2020 that included a YouTube video about their pet Italygate conspiracy. In the video, Perry said: “Why can’t we just work with the Italian government?”
Perry also urged the acting attorney general Rosen to investigate Italygate. “I told him this whole thing about Italy had been debunked,” Rosen said last June at a committee hearing.
Given Perry’s multiple efforts to help Trump stay in office, the information on his cellphone involving his contacts with Clark and Meadows is seen by the justice department as potential criminal evidence about key Trump allies.
Former prosecutors and other experts say Perry’s legal strategy of invoking the speech or debate clause as his defense has limits.
McQuade said the 23 February court hearing could lead to DoJ investigators gaining access to some of Perry’s cellphone communications that were outside his legislative duties.
“A likely scenario is that a judge would order a filter team to review the content of the phone first to find and set aside any material that might arguably be covered by the speech or debate clause, and then allow the parties to litigate whether the privilege should apply as to each item. The FBI would be entitled to review everything else.”
Other ex-prosecutors foresee similar scenarios.
“While the speech or debate clause does have limitations, courts so far have been reluctant to narrowly define those limitations and, as such, its constitutional parameters have been construed very broadly,” Paul Pelletier, a former acting chief of the DoJ’s fraud section, told the Guardian.
“While this could severely limit the government’s access to the information contained within Perry’s phone, common sense would dictate that communications plainly divorced from Perry’s legislative duties should be available to prosecutors.”
Speaking generally about the speech or debate clause’s legal protections for members, the former deputy attorney general Donald Ayer, who served in the George HW Bush administration, said: “If it’s taking place outside of Congress, unrelated to any legislative functions, and is potentially criminal action involving overturning the election, it would not be protected by the speech or debate clause.”
Likewise, former Republican Charlie Dent stressed that “there are limits to the speech or debate clause as it relates to alleged criminal activity”.
The hearing on 23 February, some of which will be public, will be before the three-judge DC court of appeals and court documents released on 15 February suggest that arguments will focus on whether the clause protects members from scrutiny of their “informal” legislative efforts.
These documents also suggest that Perry’s lawyer could challenge the DoJ by arguing that members’ communications with officials in the executive branch and private parties can be kept secret.
The three-judge panel, all of whom were Republican appointees, earlier this year stayed a ruling by the lower court judge Beryl Howell of the DC district court in December that investigators could obtain some of Perry’s cellphone communications.
Last year, Howell released redacted copies of two attorney confidentiality decisions she made that gave prosecutors access to some of Perry’s emails before January 6 with Clark, John Eastman, a key Trump lawyer, and Ken Klukowski, a DoJ lawyer who worked briefly with Clark at the justice department.
While the outcome of the 23 February hearing is uncertain, McQuade suggests that the DoJ may ultimately prevail in obtaining some communications from Perry’s phone that federal investigators want to see.
“Plotting to subvert an election would fall outside of a member’s legislative responsibilities,” McQuade said.
