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Judge orders Rep. Scott Perry to turn over cell phone records to federal prosecutors in election subversion case

By Katelyn Polantz, CNN

(CNN) — The special counsel’s office can access more than 1,600 communications found on Rep. Scott Perry’s cell phone, including some about his interest in assisting former President Donald Trump’s efforts to overturn the 2020 election, according to a new court decision on Tuesday.

The development comes months after special counsel Jack Smith’s office indicted Trump for leading a conspiracy to obstruct the vote, and following a protracted, often-secretive, court battle over which of Perry’s cell phone messages could be accessible to investigators.

The court decision releases the bulk of Perry’s messages to investigators after months of delays because of legal appeals around investigative access to congressional records, which provide special constitutional protections for the work of members of Congress.

It’s not yet clear how the court decision might affect the special counsel’s ongoing effort, including preparing for the upcoming criminal trial of Trump, or their continuing investigative pursuits.

Specifically, the judge’s decision will hand over to prosecutors several of the Pennsylvania Republican’s messages, including ones that capture his attempts “to work with or influence members of the Executive Branch” as Trump sought to dig up support for disinformation about election fraud.

Yet, Chief Judge James Boasberg of the DC District Court is allowing Perry to still protect about 400 records relating directly to votes he would take, including certifying the 2020 election result under the Electoral Count Act.

Boasberg did a painstaking review – the second time such a review has taken place – of the 2,055 Perry phone records, breaking them down into more than two dozen categories to determine which investigators could have.

The judge looked at the messages in three broad groups – if they are with members of the executive branch, meaning Trump or others; if they are among congressional members; or if they are with individuals outside the government. Some of each of these groups of messages should be protected, the judge found, following direction from the appeals court above him.

Communications about proposed legislation and the 2020 congressional certification of the Electoral College votes could be withheld from investigators, if Perry wanted to protect them, the court found.

But, communications with executive branch officials and people outside the government regarding Vice President Mike Pence’s role on January 6, 2021, for instance, can’t be shielded, the judge said.

Those messages about Pence “may bear a relationship to legislative proceedings insofar as they touch on the certification vote, they are neither ‘integral’ nor ‘essential’ to Perry’s participation in those proceedings because they pertain only to Vice President Pence’s role,” Boasberg wrote about that category of Perry’s communications.

Perry’s team hasn’t responded yet to the new order. They previously had delayed the special counsel’s office from accessing any of the messages, following the FBI’s court-approved seizure of Perry’s phone, by appealing.

Perry hasn’t been charged with any crime, and it is not clear if he is still being investigated.

Persistent texts

Perry had been in touch with Trump and powerful Trump backers around the 2020 election, including White House chief of staff Mark Meadows, Justice Department official Jeffrey Clark and others who pushed false claims of election fraud.

His communications with the executive branch were “proactive, persistent and protracted,” wrote Judge Beryl Howell, who previously reviewed the collection of phone records before Boasberg examined them more recently. At times, the congressman initiated the communication, according to Howell’s judicial opinions that have been unsealed.

Howell also said almost 700 of the records showed his interest in election security and electors, as well as contact with Trump campaign attorneys.

Some of the texts with Clark made clear Perry at times functioned as a go-between, passing messages from Trump to the DOJ official whom Trump considered installing as attorney general in early 2021 as a strategy to contest his election loss.

“You are the man. I have confirmed it,” Perry had written to Clark in late December 2020. “God does what he does for a reason.” Perry’s texts also show he lobbied Trump to give Clark classified information after the election, according to one of Howell’s opinion.

If any of Perry’s phone records are communications directly with Trump, they haven’t yet been made public.

Though some of Perry’s texts became known through the judges’ writings as the case progressed before this week, the legal questions around the Constitution’s Speech or Debate Clause still blocked investigators from using them.

This story has been updated with additional information.

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