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Court blocks special counsel Jack Smith’s access to many of Rep. Scott Perry’s files

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Court blocks special counsel Jack Smith’s access to many of Rep. Scott Perry’s files

Sep 13, 2023 | 6:05 pm ET
By Peter Hall
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Court blocks special counsel Jack Smith’s access to many of Rep. Scott Perry’s files
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House Freedom Caucus Chair Rep. Scott Perry (R-PA) arrives for a news conference outside the U.S. Capitol on May 30, 2023 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Special counsel Jack Smith may not review U.S. Rep. Scott Perry’s discussions with other members of Congress about overturning the 2020 presidential election, a federal appeals court ruled, finding they fall under an exemption for legislative speech.

The U.S. District Court for the District of Columbia published a previously sealed opinion on Wednesday that reveals details of its Sept. 6 order directing a lower court to take another look at which files Smith’s team could access from Perry’s cell phone, which the FBI seized last year.

The three-judge appellate panel reversed in part and affirmed in part U.S. District Judge Beryl Howell’s Feb. 28 order granting Smith access to all but 164 of the 2,200 messages that Perry claimed were privileged under the Constitution’s Speech and Debate Clause.

Perry contended that messages about the election constituted “informal factfinding” to gather information about an upcoming vote and were off-limits to Smith, who was appointed by Attorney General Merrick B. Garland last year to investigate former President Donald Trump. 

Howell disagreed, ruling that the messages between Perry, other lawmakers and their staff about the election were purely political and not protected as legislative speech.

“The district court inadequately considered the context of these conversations, which involved member deliberations about upcoming votes,” Circuit Judge Naomi Rao wrote in the opinion.

Rao noted that some of the messages were exchanged shortly before Congress’s scheduled Jan. 6 vote on whether to certify electoral college votes from each state. Others preceded consideration in the House of legislation that would modify federal election procedures, the opinion says.

While elections are political, Rao wrote, a lawmaker’s deliberation about whether to certify the results of a presidential election or legislation changing election procedures, “are textbook legislative acts” protected by the Speech and Debate Clause.

The panel left the question of which specific files from Perry’s phone Smith’s team may access for the lower court to decide on a fact-specific “communication-by-communication” basis.

The remand to district court for further litigation over the contents of Perry’s phone is an additional delay for Smith, who has been investigating the events leading up to the Jan. 6, 2021 attempt to overturn the election since late last year. 

The investigation led to the Aug. 1 indictment against Trump, charging him with conspiring to defraud the United States, disenfranchise voters and attempting to obstruct an official proceeding in connection with the Jan. 6 attack.

Perry has not been indicted. 

The House Jan. 6 Committee subpoenaed Perry in 2022 citing his involvement in attempts to appoint Jeffrey Clark as acting attorney general. Perry refused to testify but the committee found Perry had tried to help Trump overturn the election results.