Appeals court panel blocks Special Counsel Smith's access to cellphone seized from GOP congressman

September 6, 2023
Ben Marquis

In addition to former President Donald Trump, Special Counsel Jack Smith is also targeting for investigation and prosecution several of Trump's allies, including Rep. Scott Perry (R-PA), who had his cellphone seized by federal agents shortly after the FBI raided Trump's Mar-a-Lago residence in August 2022.

The Republican congressman just scored a legal win on Tuesday when an appeals court panel ruled to block the special counsel from accessing certain data on the seized device, according to Politico.

That sealed ruling from a three-judge panel of the D.C. Circuit Court of Appeals reportedly overturned in large part the decision of a D.C. district court judge earlier this year that would have allowed the special counsel to access the majority of the data it sought on Perry's cellphone.

District judge would have allowed special counsel to access data on seized device

In August 2022, amid accusations that Rep. Perry was somehow involved in former President Trump's efforts to challenge and reverse the 2020 election results, FBI agents served a warrant and seized possession of the congressman's cellphone.

He immediately moved to block the federal government from accessing the device and cited his legal immunities and privileges as a member of Congress under the Constitution's "speech and debate" clause, but D.C. District Judge Beryl Howell, an Obama appointee, largely disagreed with Perry's arguments and ruled against him.

In a partially redacted January 2023 ruling, Judge Howell rejected Perry's request for a stay of her prior ruling in December that would have allowed the special counsel to access more than 2,000 records on the seized device, though she did agree to block access to 164 records, either in full or in part, that she acknowledged were protected by the congressman's privileged immunity.

Appeals court panel overturns lower court, blocks special counsel's access to data

According to Politico, Rep. Perry immediately appealed the matter to the D.C. Circuit, of which a three-judge panel heard arguments in February and issued a temporary stay until a final determination was rendered.

Unfortunately, that final ruling from the three-judge panel was filed under seal, though it could soon be unsealed and publicly revealed as the panel gave both Perry and the special counsel until September 12 to argue why or why not the case should remain sealed and secret from the public.

That said, despite the ruling being sealed, Politico reported that it had determined that the circuit judges had largely rejected and overruled the decision by Judge Howell and agreed that Perry's immunity blocked the special counsel's investigators from accessing the privileged contents of the seized cellphone.

That is undoubtedly welcome news for both Republicans and Democrats more broadly in Congress, who despite the partisan nature of the situation and unknown specifics of the matter nonetheless came together in bipartisan fashion to file a brief in support of Perry and in defense of the "speech and debate" clause that they all rely upon for protection against partisan prosecution for doing their jobs as legislators -- whatever that job might actually entail.

Perry vowed to fight partisan investigation and prosecution

NBC News reported that Special Counsel Smith's office declined to respond to a request for comment on the panel's sealed ruling, and it is unclear if they will appeal the matter further, either to the full bench of the D.C. Circuit Court or to the Supreme Court.

Likewise, Rep. Perry's attorney, John Rowley, also declined to provide comment given the sealed nature of the panel's ruling, though he did say, "We’ll see if we can unseal it soon."

The outlet noted that Perry is alleged by the special counsel to have coordinated efforts with the Trump campaign and White House and local state legislators to challenge and potentially reverse the 2020 election results in Pennsylvania and elsewhere.

When his cellphone was first seized by the feds, the congressman expressed how "outraged" he was at the overt political motivations of President Joe Biden's Justice Department and vowed to fight back against what he asserts is an unlawful violation of his constitutional rights and privileges as a member of Congress.

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