Appeals court won’t fully block special counsel’s access to Rep. Scott Perry’s phone, but court fight continues

By Tierney Sneed and Marshall Cohen, CNN

(CNN) — A federal appeals panel on Tuesday declined to issue a broad order blocking special counsel Jack Smith’s team from accessing data from Pennsylvania Rep. Scott Perry’s cell phone that was seized by the FBI, and sent the case back to a lower court for further litigation over what material investigators can examine.

Federal investigators seized Perry’s phone in August 2022 while investigating the efforts by former President Donald Trump and his Republican allies to overturn the 2020 election. However, Smith’s team hasn’t yet examined the material, which was set aside while Perry’s legal challenges play out.

Perry asked the DC Circuit Court of Appeals to completely block the Justice Department from accessing his cell phone. The judges, however, sent the case back to a lower court to “apply the correct standard” and determine which of Perry’s communications can be examined.

The decision is also a partial blow to prosecutors, who wanted the appeals panel to uphold a lower-court ruling that granted them access to most of the files on Perry’s phone. Instead of endorsing that ruling, the appeals panel sent the case back to that judge with guidance for how to re-evaluate the high-profile matter.

The lower-court judge was ordered to reconsider Perry’s privilege arguments and determine if investigators can examine his communications with “individuals outside the federal government, communications with members of the Executive Branch, and communications with other Members of Congress regarding alleged election fraud,” according to a docket entry made public Tuesday.

The full opinion from the appeals panel wasn’t publicly released, so it’s not clear what standard the judges want to see applied to Perry’s texts, and how their new formula could benefit Perry or the prosecutors. (Most of the litigation in the case is under seal.)

However, it appears that Tuesday’s ruling somewhat narrowed the ability of investigators to scrutinize Perry’s phone, while still allowing them to continue their legal efforts to access the material.

Practically speaking, the ruling gives Perry another opportunity to make his case that the seized materials shouldn’t be used in the special counsel probe, and Tuesday’s ruling could give his arguments some new legal backing.

Special counsel investigators are seeking access to more than 2,200 records of communication between Perry and the Trump White House and others, according to previous court filings.

Perry was connected to Trump’s attempts to weaponize the Justice Department to help him overturn his 2020 election defeat, seeking to install a sympathetic acting attorney general and sending letters to battleground states falsely claiming that there had been widespread voter fraud.

The decision on Tuesday was unanimous and came from three GOP-appointed judges. Their ruling is under seal, though it could be made public in the future if there aren’t any objections from the Justice Department or Perry’s lawyers, according to a court filing. The appeals court also told parties to weigh in by next Tuesday on how the sealed opinion should be redacted for public release, a sign that the opinion will be at least partially unsealed in the coming days or weeks.

Even after Smith indicted Trump in connection with the January 6, 2021, probe, his investigation is still ongoing. In addition to Smith’s continued pursuit of Perry’s phone data, CNN reported earlier Tuesday that Smith’s team recently asked witnesses about attempts by Trump supporters to breach voting machines in key states, and about fundraising efforts based on false claims of voter fraud.

The dispute over Perry’s phone data dates back to before Smith took over the sprawling federal criminal probe.

The seized cell phone of Perry contained 930 records in which the Pennsylvania Republican often tried to cajole executive branch officials around the 2020 presidential election, according to the court record. He had been in touch with Trump and powerful Trump backers, including former White House chief of staff Mark Meadows, Justice Department official Jeffrey Clark and others who pushed false claims of election fraud. (The special counsel hasn’t been able to see all of those exchanges because of Perry’s pending appeal.)

Perry’s communications with executive branch officials were “proactive, persistent and protracted,” Judge Beryl Howell of the trial-level court wrote previously when she ruled in favor of letting investigators examine the material.

Perry, Meadows and Clark haven’t been charged with federal crimes.

Clark is one of the unindicted co-conspirators described in Trump’s federal election subversion indictment. He and Meadows are also facing state criminal charges in Georgia related to the 2020 election, and have pleaded not guilty.

The key issue in Perry’s legal challenge 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 efforts to take the temperature on an issue headed for a vote, when that approach that was not formally authorized by Congress.

Howell had called Perry’s arguments for secrecy ones that would “truly cloak Members of Congress with a powerful dual non-disclosure and immunity shield for virtually any of their activities that could be deemed information gathering about any matter which might engage legislative attention.”

This story has been updated with additional details.

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