A federal appeals court on Thursday questioned the access that Justice Department prosecutors can have to a GOP lawmaker’s phone seized as part of the special counsel investigation into 2020 election subversion.
At a partially public hearing Thursday, the US DC Circuit Court of Appeals grappled with the scope of a constitutional provision that shields legislators from certain law enforcement actions and had tough questions for both the attorney representing Republican Rep. Scott Perry, whose phone was seized by the FBI in August, and for the Justice Department attorney arguing in favor of prosecutors being able to obtain communications from the device.
Many details of the dispute remain shrouded in secrecy, including an underlying district court opinion that Perry appealed to the circuit court.
An attorney for Perry said Thursday that the files in question pertained to the discussions the Pennsylvania congressman was having about two legislative matters: a election rules reform bill Congress was considering in early 2021 and Perry’s vote on the January 6, 2021, certification of the presidential election results.
A lawyer for the special counsel’s office did not provide that level of detail about what’s at issue in the case, argued that the Justice Department should be able to access a member of Congress’ cell phone records if they were making calls as informal research before a possible legislative vote.
The key issue in the case is whether the Constitution’s so-called Speech or Debate Clause – which says legislators cannot be questioned on “any Speech or Debate” in Congress – applies to a lawmaker’s “informal fact finding” that was not formally authorized by Congress.
Two judges on the circuit panel – Circuit Judges Gregory Katsas and Neomi Rao, both Trump appointees – zeroed in on this issue in their questions for DOJ attorney John Pellettieri. They seemed to balk at the hard line he drew that those kinds of informal communications were not protected by the clause. The judges, however, also grilled Rowley on whether he was pushing a virtually limitless interpretation of the Clause that would shield all sort of communications lawmakers had, including with individuals not in Congress.
“Shouldn’t we put weight on the fact that what we’re talking about here seems far afield from Speech or Debate?” Katsas asked Rowley.
How the DC Circuit views the 17-word constitutional provision could have implications not just for how the Trump investigations proceed, but what sort of immunity legislators have in all sorts of court proceedings going forward – particularly if the conduct is not clearly part of their formal activities in Congress.
“We want members of Congress to be able to do their jobs without constantly being hauled into court,” said Elliot Williams, a former Justice Department official who also worked for the Senate Judiciary Committee. “But it defies logic and probably the Constitution for Congress to think it can wave a wand and call everything it touches quote ‘informal legislative fact-finding.’”
Perry was identified by the House January 6 committee as a player in Trump’s efforts to weaponize the Justice Department. Perry did not comply with a subpoena from the committee for his testimony.
After the FBI seized Perry’s phone access, he filed a public lawsuit challenging investigators’ access to its contents. However, the wrangling between him and the Justice Department has played out in private court proceedings.
Only the first hour or so of the roughly 90 minute hearing played out in open court, with the latter part of the proceedings taking place under seal.
No ‘get out of jail free card’
The Constitution’s Speech or Debate Clause says that “for any Speech or Debate in either House,” lawmakers “shall not be questioned in any other Place.” It functions as a separation-of-powers provision that prevents legislators from being arrested or being forced to participate in court proceedings for their legislative conduct on the congressional floor.
Courts have also said the clause extends to lawmaker conduct in congressional committee proceedings and that it also can cover congressional staff.
The Speech of Debate Clause is “not a get out of jail free card,” Thomas Spulak, who served as general counsel to the House of Representatives in the 1990s, told CNN this week.
“It only protects them from questioning, being subpoenaed or anything else for any legislative acts,” Spulak said. “What we’re seeing today is a judicial analysis of what defines a legislative act.”
In the judges’ questions for the DOJ Thursday, the DC Circuit panel appeared sympathetic to Perry’s position that informal discussions that legislators have with outside parties can amount to the type of legislative activity covered by the clause.
“Suppose a member is deliberating how to vote. They do a series of calls to key stakeholders and records the calls. You think you can get that?” Katsas asked Pellettieri.
Rao asked the DOJ lawyer: “Why is an individual’s fact finding not a precursor to legislative proceeding?”
Already, the Speech or Debate clause has been invoked in disputes arising from investigations into 2020 election subversion, including when South Carolina GOP Sen. Lindsey Graham tried to resist a testimonial subpoena issued in the Fulton County grand jury probe.
Rowley, at Thursday’s hearing, pointed to the Graham case and other decisions as supporting Perry’s arguments. He offered the recent trail derailment in Ohio as an example of the type of matter a lawmaker would do his own research on for potential legislation even though Congress had not yet set up a formal investigation.
Still, the judges hinted their wariness of interpreting the provision too broadly
“I am wondering what you think might be the limits of such a non-disclosure privilege,” Rao asked Rowley.
What kind of “informal” fact-finding amounts to covered legislative activity?
In seeking to block DOJ’s access to Perry’s phone, his lawyers have pointed specifically to a 2007 ruling concerning an FBI search of then-Rep. William Jefferson’s congressional office in a bribery probe. The DC Circuit said that the Justice Department ran afoul of the constitutional clause by sorting through the Louisiana Democrat’s files without his consent.
Chief Judge Beryl Howell, however, ruled under seal that in Perry’s case, some of the communications on Perry’s phones wouldn’t fall under his legislative work because they weren’t sanctioned by any legislative authority. She said that investigators could access certain materials on Perry’s phone that his lawyers had argued should be withheld. Howell’s ruling did, however, allow Perry to protect some of his phone contents under the Speech or Debate Clause, a source familiar with the investigation told CNN.
To make her decision, Howell confidentially reviewed details about the information that was on Perry’s phone that the Justice Department sought, the source said. Prosecutors still haven’t gotten access to the more than 2,000 records they seek.
The DC Circuit Court of Appeals above Howell has put on hold her rulings, including investigators’ ability to access Perry’s phone records, as it hears arguments in the case on a much-quicker-than-usual timeline.
On Thursday, Perry’s attorney said that his circumstances were parallel to the 2007 case, with the difference being this search is of a cell phone instead of an office.
The judges, however, asked Rowley whether the immunity applies once a lawmaker speaks to parties outside of Congress – and questioned whether that could theoretically cover all kinds of communications of a member of Congress using a cell phone.
“It’s not the cell phone that makes this odd, it’s that the communication can be to anyone in the universe,” Katsas told Rowley.
Circuit Judge Karen Henderson, the third member of the panel, participated in Thursday’s hearing remotely. Henderson, an appointee of President George H.W. Bush, was on the circuit panel in the William Jefferson case and wrote a concurrence that took a much narrower view of the Speech or Debate Clause than the one embraced by the other judges on that decision.
The DC Circuit is also considering whether it has the authority to intervene at this point, but the judges asked the parties to focus on the other legal questions in the case when arguing on Thursday.
The House – with the approval of both majority and minority leadership – has sought to weigh in on the case, in a sign of how the Perry litigation could set the rules for how the immunity applies to all sorts of lawmaker activity going forward. The House’s filings, however, are not public.
Spulak noted that, practically speaking, the role of a congressperson has become “pretty broad” over time and that their legislative duties can go beyond talking about a specific piece of legislation, “since oversight is fundamental to the legislative process.”
In the Graham case, the US Supreme Court refused to block the Fulton County grand jury’s subpoena for his testimony. The justices stressed that the lower courts that ordered his appearance had said that the Speech or Debate Clause precluded him from question about the “informal investigative fact finding” that was part of his legislative activity.
The DC Circuit’s consideration of the Perry case could flesh out what kind of informal fact-finding amounts to protected legislative activity.
“Depending on how broad you read what a legislative act is, it could permit members of Congress to really cover lots of their conduct within the speech or Debate Clause that I think we would generally not think would be covered,” said Neil Eggleston, a former White House counsel under President Barack Obama.
This story has been updated with additional developments Thursday.