By Sarah N. Lynch and Jacqueline Thomsen
WASHINGTON (Reuters) – U.S. Justice Department attorneys were expected to urge a federal appeals court on Thursday to let investigators search a Republican congressman’s cellphone as part of Special Counsel Jack Smith’s probe into efforts by then-President Donald Trump to overturn the result of the 2020 election.
U.S. Representative Scott Perry – a Trump ally who helped spread his fellow Republican’s false claims that the 2020 election was stolen from him through widespread voting fraud – has sought to block the Department of Justice (DOJ) from reviewing the contents of his cellphone since it was seized last summer.
Perry’s lawyers, John Rowley and John Irving, were seen in the lobby of the federal courthouse in Washington early Thursday morning.
At the heart of the legal dispute is whether the contents of his cellphone are shielded from disclosure under the U.S. Constitution’s speech and debate clause. That provision gives Congress members immunity from civil litigation or criminal prosecution for actions that arise in the course of their legislative duties.
Perry’s attorneys will argue that his communications with the White House and others are covered by this provision and should be shielded from the DOJ.
Thursday’s oral arguments will be presented before a panel of three Republican-appointed appellate judges.
Perry’s conduct is under scrutiny because of the prominent role he played in the lead-up to the Jan. 6, 2021, attack on the U.S. Capitol by thousands of Trump supporters who descended on the building in a failed bid to block Congress from certifying Democrat Joe Biden’s election victory.
An investigation by the U.S. House of Representatives Jan. 6 committee when Democrats controlled the chamber revealed Perry was in frequent contact with Trump White House officials in the weeks before the Capitol attack.
He also played a crucial behind-the-scenes role in lobbying Trump to appoint former Justice Department official Jeffrey Clark as the acting attorney general so that Clark could launch investigations into Trump’s bogus election fraud claims.
Trump ultimately declined to appoint Clark, after top DOJ officials threatened to resign en mass.
Federal agents last summer seized Clark’s phone as part of the criminal investigation into efforts to overturn the 2020 presidential election.
Agents executing a search warrant at Clark’s home cited probable-cause evidence of conspiracy, false statements and obstruction of justice, he later revealed in a filing with the D.C. bar.
In August, Perry filed a civil lawsuit against the Justice Department in a bid to block prosecutors from obtaining a second search warrant to seize his phone.
In the litigation, his attorneys argued that the DOJ is bound to follow procedures which arose through a prior court case known as USA v. Rayburn House Office Building.
In that case, which stemmed from a 2006 FBI raid of U.S. Representative William Jefferson’s office, the U.S. Court of Appeals for the D.C. Circuit ruled the search was unconstitutional and laid out a method for how search warrants aimed at members of Congress can be executed.
That approach involves letting a lawmaker review the materials sought in a search warrant to weed out any that are protected, and show documents they say are protected to the court for a final determination.
Shortly after Perry’s lawsuit was filed, his attorneys said they had put it on hold amid talks with the DOJ. Since then, the legal dispute has progressed under seal.
However, the Reporters Committee for the Freedom of the Press argued the case should be unsealed, and the court agreed to hold a portion of Thursday’s hearing in public.
(Reporting by Sarah N. Lynch and Jacqueline Thomsen; editing by Jonathan Oatis)
