A lawyer for Rep. Scott Perry, R-Pa., argued before a federal appeals court Thursday against the Justice Department’s bid to access the contents of his phone.
The FBI seized Perry’s phone last year as part of the department’s Jan. 6 investigation. Perry, an ally of former President Donald Trump who supported his efforts to overturn the 2020 presidential election results, sued the DOJ last year requesting the return of all cellphone data the FBI had seized. Perry’s lawyers dropped the case in October without providing an explanation.
Perry has argued that the government does not have the authority to search the data because his phone contained sensitive information protected by the speech or debate clause of the Constitution, which grants lawmakers legal protections for legislative acts.
A panel of three judges on the U.S. D.C. Circuit Court of Appeals pressed Perry’s lawyer, John Rowley, about what scenarios the protections of the speech or debate clause apply to.
Rowley repeatedly argued that “speech within the legitimate legislative sphere” is protected under the clause.
“There’s no reason, your honor, that privilege applies to a congressman’s office but not his cell phone” given that members “can use their cell phones to communicate on legislative manners,” Rowley said.
Rowley pointed to members of Congress who were encouraged to vote by proxy during the Covid-19 pandemic.
“And so for that reason, your honor, perhaps some time ago it made sense to limit the protections of the privilege to congressmen’s workspace, in his present office. I would submit to the court that that is no longer the case, given the realities of technology,” he said.
Asked about whether the same protections apply to lawmakers’ communications with people outside of Congress, Rowley said he believes the principles are similar, provided that the communication is “conducted within the sphere of legitimate legislative activity” and that members conduct informal “fact finding” often.
Perry, who chairs the conservative House Freedom Caucus, said in emergency motion filed in Washington, D.C., federal court in August that his phone was seized by federal agents who approached him while he was on vacation with his family in New Jersey.
The agents had a search warrant for the device, and Perry got his phone back the same day after agents created an image of its data. After the seizure, Perry’s attorney, John Irving, said in a statement at the time that the Justice Department had informed him that Perry “is not a target of its investigation.”
The warrant indicated the phone data would be taken to a Justice Department forensic lab in Northern Virginia, but because the initial warrant authorized only the seizure of the phone, investigators would need a second warrant from a judge before they could go through the data.
It is unclear why Perry’s phone was seized. The congressman came under scrutiny by the House Jan. 6 Committee in the last Congress, which referred him and three other House Republicans, including then-House Minority Leader Kevin McCarthy, R-Calif., to the House Ethics Committee for defying the panel’s subpoenas.
The committee said it had evidence “from multiple witnesses” alleging Perry’s involvement in an effort to install former Justice Department official Jeffrey Clark as the acting attorney general during the final months of the Trump administration. Clark promoted Trump’s baseless claims of a stolen 2020 presidential election and wanted the Justice Department to step in to challenge the results.
Perry’s phone was seized after agents executed a search warrant at Clark’s home in June and also seized the phone of John Eastman, a Trump lawyer who during the 2020 election wrote memos urging then-Vice President Mike Pence to overturn the results.
Upon his election as House speaker, McCarthy indicated that Republicans intend to probe the work of the now-defunct House committee that investigated the Jan. 6 riot. Last November, McCarthy sent a letter telling then-committee Chair Bennie Thompson, D-Miss., to preserve all records and transcripts and vowed to hold hearings in the new Congress about the security failures that led to the attack in 2021.
Perry last month declined to say he would recuse himself from any House GOP investigation of federal probes into the events surrounding the Capitol attack, despite being a subject of those investigations.
“Why should I be limited just because someone has made an accusation? Everybody in America is innocent until proven guilty,” Perry said in an interview on ABC’s “This Week.”