A federal appellate court on Monday blocked Justice Department access to the phone records of a Republican lawmaker as part of the investigation charging former president Donald Trump with trying to undo the 2020 election results.
While the details remain under seal, the ruling stymies federal Jan. 6 investigators who have been fighting for a year to review thousands of documents from Rep. Scott Perry (R-Pa.).
The legal fight has been conducted largely in secret, and Monday’s ruling from the U.S. Court of Appeals for D.C. was likewise under seal. But the public order vacates a lower-court ruling that gave the Justice Department access to thousands of texts, emails and attachments it sought from Perry’s phone, which was seized by investigators in August 2022. The appellate court said the lower court must “apply the correct standard” to Perry’s communications “regarding alleged election fraud during the period before Congress’s vote certifying the 2020 election.” It upheld the district court’s ruling on Perry’s other communications.
Judge Beryl A. Howell of the U.S. District Court in D.C. granted the special counsel investigating the Jan. 6 attack access to most of the 2,200 records nine months ago, saying releasing the information for the historic investigation outweighed the need for secrecy. Perry had argued that the search would violate constitutional protection from criminal investigation for lawmakers engaged in “speech or debate.” He made the same argument on appeal, backed by a bipartisan group of House leaders.
Howell agreed in December that 164 of 611 communications Perry conducted with other House members were privileged because they concerned core legislative actions involving Congress’s joint session to confirm the 2020 electoral college vote, and matters such as committee assignments. But she rejected that claim for the rest of his conversations with lawmakers, 678 messages with private outside parties, and 930 messages involving executive branch officials.
Those messages consisted of “random musings” and “political discussions” not congressional work that would be shielded from criminal investigation, the judge wrote.
Perry’s “informal inquiries into the legitimacy of those election results are closer to the activities described as purely personal or political [ …], since this ‘fact-finding’ was conducted entirely outside the auspices of a formal congressional inquiry or authorization,” Howell wrote.
The opinion from the appeals court was written by Judge Neomi Rao with a concurring opinion by Judge Gregory Katsas. Both are Trump appointees who served in his administration. At an oral argument earlier this year, part of which was held in public, both suggested Howell had improperly drawn a line between formal investigations and informal fact-finding.
The Justice Department could ask the full D.C. Circuit to review the ruling.
After Joe Biden’s 2020 election victory, Perry pushed the White House and Justice Department to investigate implausible election fraud claims, including that an Italian defense contractor conspired with senior CIA officials to flip votes from Trump to Biden using military satellites. Perry was also involved in the effort to install as acting attorney general Jeffrey Clark, a Justice Department official now charged in Georgia with taking part in a criminal conspiracy to overturn that state’s election results. Clark, who pleaded not guilty, is also an unnamed co-conspirator in the federal criminal case accusing Trump of illegal election interference.
The Georgia indictment includes a text from Trump chief of staff Mark Meadows asking Perry for help reaching Pennsylvania state lawmakers, calling it an “overt act in furtherance of the conspiracy.” White House aide Cassidy Hutchinson told the House committee investigating Jan. 6 that Perry sought a preemptive pardon for Trump; the lawmaker denies doing so. He refused to comply with a subpoena from the committee.
An attorney for Perry declined to comment while the opinion remains under seal.