Federal court denies special counsel access to Rep. Perry’s 2020 election communications
A federal appeals court in Washington, DC, last week denied special counsel Jack Smith access to messages that Rep. Scott Perry (R-Pa.) sent to members of Congress and the Trump White House about the 2020 election.
The DC Circuit Court of Appeals dealt the setback to Smith after a three-judge panel found his office’s request for the records were out of bounds due to constitutional protections afforded to Perry, court filings show.
“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,” Judge Neomi Rao wrote in a Sept. 5 opinion unsealed Wednesday.
“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,” she added. “These communications were privileged, and we leave it to the district court to implement this holding on a communication-by-communication basis.”
The panel’s decision was the first major blow to Smith’s office as it seeks evidence to prosecute former President Donald Trump for his efforts to remain in power following his loss to Joe Biden, which ended in a mob storming the US Capitol on Jan. 6, 2021.
“This decision is a tremendous victory for the Constitution, and for all Americans who have been targeted by the Biden Administration’s continued abuse of power,” Jay Ostrich, a spokesman for Perry, told the Post in a statement.
“The court soundly rejected the Biden Justice Department’s contention that simple fact-finding inquiries made by a Member of Congress need to be pre-authorized by some committee or ordained by the House to be protected from compelled disclosure by the Executive Branch,” he added.
“This decision firmly establishes that the Executive Branch can’t prevent Congressman Perry, or any Member of Congress, from doing their job by having internal communications with other Members, or with their own staff — in this case, looking into certification of the presidential election.”
Smith’s office declined to comment.
Rao, who was appointed by Trump, joined Judge Greg Katsas, also a Trump appointee, and Judge Karen LeCraft Henderson, an appointee of former President George H.W. Bush, in the ruling.
The judges overturned an earlier ruling by DC US District Judge Beryl Howell, who argued the Constitution’s Speech or Debate clause did not shield Perry from federal review while engaged in “informal factfinding.”
“We disagree with the district court’s holding that informal factfinding is never a legislative act,” Rao said in her opinion. “But we also reject Representative Perry’s proposition that informal factfinding is always a legislative act.”
Howell must now reconsider her initial decision and “apply the correct standard” to individual communications, according to the judicial panel. That includes material not “integral” or “essential” to the work of Congress.
Smith will be granted access to files on Perry’s phone that have no bearing on his congressional duties, the ruling also states.
The FBI obtained a search warrant and took the Pennsylvania Republican’s phone in August 2022, but federal prosecutors asked for another search warrant to look at texts and calls Perry made to lawmakers and Trump officials.
Smith indicted Trump Aug. 1 on four counts including conspiracy to defraud the US government, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.
The former president pleaded not guilty to all charges two days later. US District Judge Tanya Chutkan has set a March 4 trial date, the day before Super Tuesday in the Republican presidential primary.
