D.C. Judge Beryl Howell has opted to permit investigators at the Justice Department to access what were identified as over 2,000 documents from a personal cellphone belonging to Rep. Scott Perry (R-Pa.), an ally to Trump in Congress who helped with the push after the last presidential election to block Biden’s win. The “documents” are evidently messages.
Perry has specifically been identified in reports as behind pushing Jeffrey Clark, who was then an official at the Justice Department, to Trump’s team. Trump considered as his time in office ended making Clark the head of the Justice Department. Clark was sympathetic to Trump’s false claims regarding — and ambitions towards — the election results. As for Perry, he rested his arguments against investigators accessing records stored on his phone on a portion of the Constitution that’s seemingly come up a lot lately: the so-called Speech or Debate Clause. It ordinarily protects members of the legislature from investigative scrutiny over their official duties, which helps, of course, with tamping down on the possibility of politically motivated investigations. Using such a consideration as a pretext is essentially expressly forbidden.
Howell, though, concluded that a lot of what remained under dispute from Perry’s phone either didn’t meaningfully reflect his official duties or was simply outside the scope of what that portion of the Constitution would be ordinarily meant to cover. In the latter category are communications Perry had with figures in the executive branch itself. The nature of these conversations makes any argument about protecting the missives from scrutiny by the executive branch difficult to fathom. They’re arguably already in that category. Howell also singled out communications Perry evidently had with state legislators — missives that she noted concerned business before these figures, not the House. Whether through the letter-writing campaigns in which Ginni Thomas joined, Rudy Giuliani’s remarks at hearings, or other means, state legislators faced substantial pressure after the 2020 presidential election.
Howell’s decision, in which she isolated only a small number of communications from the device as protected, is on hold while appeals judges consider her conclusions and further arguments from both Perry and the Justice Department, and depending on how they rule, still further proceedings could take place. In the meantime, Howell was direct. “What is plain is the clause does not shield Rep. Perry’s random musings with private individuals touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania,” she said. At issue going forward could be whether communications Perry had about January 6 outside the immediate context of formal House business on January 6 are categorizable as nonetheless protected by the Constitution.