Special Counsel Jack Smith, the special appointee investigating former President Donald Trump, has been seeking the communications records of various Republican lawmakers in a broader investigation into the breach of the U.S. Capitol on Jan. 6, 2021.
Smith was appointed as special counsel in November of last year. He was primarily tasked with investigating Trump’s handling of classified documents after some were found at his Florida home last summer. Smith also took over an ongoing investigation looking into whether any person or entity interfered with the transfer of power following the 2020 presidential election or the certification of the electoral votes on or around Jan. 6, 2021.
On Thursday, attorneys from Smith’s team appeared before a three-judge panel on D.C. Circuit Court of Appeals to argue their case for why they should be given access to the communications records of Rep. Scott Perry (R-Pa.) as they relate to his actions surrounding Jan. 6, 2021. Investigators have reportedly sought Perry’s communications records following allegations he attended meetings and consulted with the Trump team about ways to challenge the 2020 election results, which Congress certified on Jan. 6, 2021.
The FBI seized Perry’s phone in August and created a digital copy of the records it contained. The actual reason Perry’s records were seized remains unclear. The now-defunct House Jan. 6 investigative committee claimed in a December 2021 letter (pdf) that they had evidence Perry sought to help install Jeffrey Clark, an official who supported Trump’s challenges to the 2020 election, to serve as the acting U.S. attorney general.
Last year, Rep. Liz Cheney (R-Wyo.) also claimed Perry sought a pardon from Trump in the days following the Jan. 6, 2021 breach of the U.S. Capitol. Perry said the claim he sought a presidential pardon is an “absolute, shameless, and soulless lie.”
Perry Asserts Constitutional Privilege
Perry’s attorneys have challenged the Justice Department’s authority to use the data they collected from Perry’s phone. Perry’s legal team has argued that his communications are generally protected by the “Speech or Debate” clause of the U.S. Constitution.
The constitutional clause states, “For any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place.”
A lower court had previously ruled that the “Speech or Debate” clause does not apply to informal legislative factfinding efforts that are not specifically authorized by the house and Perry’s communications fall outside the protections of the constitutional clause. Perry’s legal team appealed the lower court’s decision.
Special Counsel Says Communications Not Protected
Lawyers for the Special Counsel have argued that the protections of the “Speech and Debate” no longer applied once Perry communicated with members outside of Congress, such as the Trump team.
Judge Gregory Katsas, a Trump appointee, quizzed the Special Counsel’s legal team extensively about their stance during the hearing. Katsas offered the example of a member of Congress reaching out to legal experts or stakeholders regarding a particular piece of legislation, and asked if those communications would be outside the protections of the “Speech and Debate” clause.
“It is not a legislative act unless it’s it is connected to the investigative factfinding functions of Congress as a whole,” replied John Pelletieri, an attorney for the Department of Justice.
“The bill is on the floor, but the members trying to figure out how to vote, you don’t think it’s integral that member, it’s not integral to that member’s vote?” Katsas asked.
“Not everything in a congressman’s life that you can connect in a logical inferential chain of inferences to a vote is protected by the ‘Speech or Debate’ Clause,” Pelletieri argued.
Judge Neomi Rao, another Trump appointee on the appeals court, noted that a congressional committee’s fact-finding efforts, even with communicating with individuals outside of Congress, does have non-disclosure protections.
“We have to have some account of why a committee’s investigation and fact-finding is a legislative act, but a member’s similar activity is not,” Rao said.
As the hearing proceeded, Rao remarked that the limits of the “Speech or Debate” Clause’s protections are a “tricky line.”
Judges Question Perry’s Team
During the hearing, the judges questioned Perry’s legal team about the extent that the “Speech or Debate” Clause could reasonably shield Perry’s communications with Trump’s team from investigators.
“In the context of executive privilege, that privilege can be waived if material is shared with third parties,” noted Judge Rao. “So what about for members of Congress? If a communication is made with somebody outside of Congress, why should that be covered by the nondisclosure privilege?”
Perry’s attorney, John Rawley, argued that the “Speech or Debate” clause is different from the executive privilege of the president and “applies to communications that are outgoing or ingoing by a congressman.” Rawley said the real linchpin of the congressional privilege “is whether or not that discussion, that communication, is is being undertaken for legislative purpose.”
The court has yet to make a decision whether to grant the special counsel access to Perry’s phone records.
NTD News reached out to Perry’s office for comment but did not receive a response before this article was published.