A federal appeals court Tuesday partially blocked a judge's ruling that had given the Justice Department access to many of Rep. Scott Perry’s cellphone communications in connection with special counsel Jack Smith's criminal investigation into efforts to overturn the 2020 election.
The unanimous ruling from the U.S. Circuit Court of Appeals for Washington, D.C., vacated in part of Chief Judge Beryl A. Howell's ruling in Washington's federal district court that granted the Justice Department access to the bulk of the communications retrieved through a search warrant. Perry, R-Pa., is a Trump ally who supported efforts to reverse the election results.
The ruling from a three-judge panel asks the district court “to apply the correct standard” to Perry’s communications with people outside the federal government, members of the executive branch and other Capitol Hill lawmakers “regarding alleged election fraud during the period before Congress’s vote certifying the 2020 election.”
The members of the panel — Judges Neomi Rao, Karen Henderson and Gregory Katsas — were all nominated by Republican presidents. Rao wrote the opinion, with a concurring opinion from Katsas. Rao and Katsas are Trump appointees.
A spokesperson for the special counsel’s office declined to comment on the ruling. John Rowley, an attorney for Perry, declined to comment, noting that the decision was sealed. "We’ll see if we can unseal it soon," he said in an email.
The court indicated it will consider unsealing Tuesday’s ruling and asked the parties to respond by Sept. 12.
The ruling comes more than one year after Perry said he was "outraged" after FBI agents seized his cellphone, which he said included information about his "legislative and political activities," as well as "personal/private" discussions with family, friends and constituents.
Perry had demanded the return of seized cellphone data in a lawsuit against the Justice Department last year. His lawyers dropped that case in October without providing an explanation.
In his effort to shield the records, Perry has argued that the government lacked the authority to search his communications because of protections afforded by the Constitution's “speech or debate” clause.
In February, Howell disagreed, allowing the government access to a vast majority of the more than 2,000 records Perry had claimed privilege over.
"What is plain is that 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," Howell wrote at the time.
She had blocked access to 164 of Perry’s 611 communications with other members of Congress and staff members that she said included privileged information. The appeals court upheld that part of Howell's ruling Tuesday.
Howell, an Obama appointee, had granted the Justice Department’s request for access to emails between Perry and Trump-allied lawyer John Eastman, in addition to exchanges between Perry and former Justice Department officials Jeffrey Clark and Ken Klukowski.
The emails with Klukowski included a document supporting a framework that argued state legislatures had "the final authority on presidential elections" and later a document promoting states' ability to "Self-Convene to Appoint Presidential Electors.”
Perry has frequently come under scrutiny over his alleged actions after the 2020 election. Text messages obtained by the House Jan. 6 committee, along with testimony from former Acting Deputy Attorney General Richard Donoghue at a hearing last year, appeared to show Perry's alleged involvement in an effort to replace then-acting Attorney General Jeff Rosen at the Justice Department with Clark, an environmental lawyer.
Perry was also cited, according to text messages obtained by the Jan. 6 committee, asking Trump White House chief of staff Mark Meadows about the potential to "work with the Italian government" regarding a conspiracy theory that suggested Italians had switched votes from Donald Trump to Joe Biden.
