The decision breaks new ground in a decades-long tug-of-war between Congress and the executive branch. For the first time, an appeals court has ruled that lawmakers’ cellphones are subject to the same protections as their physical offices. And it’s the first significant legal setback for Smith in his bid to obtain evidence about the involvement of allies of then-President Donald Trump in his effort to subvert the 2020 election.
It is unclear whether Smith will appeal the decision to the full D.C. Circuit or to the Supreme Court. His office declined to comment, as it did last week when the court issued an order outlining the outcome of the fight.
Rao, a Trump appointee, was joined in the decision by another Trump appointee, Judge Greg Katsas, and Judge Karen LeCraft Henderson, who was nominated by President George HW Bush. However, Katsas filed a separate concurring opinion saying he viewed the legislators’ privilege more narrowly than the court’s other justices, but the disagreement was not significant in Perry’s case.
The FBI seized Perry’s phone with a court-approved search warrant in August 2022, before Smith was tapped as special counsel, but when the Justice Department had stepped up its investigation into Trump’s actions before the attack on the Capitol on January 6, 2021. Prosecutors, however, did not immediately access Perry’s phone and instead sought a second search warrant governing their ability to review Perry’s communications with other members of Congress, the executive branch and others related to the 2020 elections.
In the new ruling, the three-judge D.C. Circuit court overturned a lower court decision by U.S. District Judge Beryl Howell that had largely sided with the Justice Department’s effort to access Perry’s phone. Howell argued that Perry’s “informal” investigation into the 2020 election was not protected by the Speech or Debate Clause and could not be shielded from DOJ review.
But the appeals court rejected that, ruling that lawmakers did not have to act pursuant to some official authorization, such as a committee investigation, in order to protect their materials under the clause of speech or debate. Still, appeals judges said not every effort a lawmaker makes to seek information was entitled to automatic protection.
“We disagree with the district court’s holding that informal fact-finding is never a legislative act. But we also reject Representative Perry’s proposition that informal fact-finding is always a legislative act,” Rao wrote.
The appeals court sent the matter back to Howell to apply these new rules to its original decision.
“Representative Perry’s conversations with other members relate to passing the proposed legislation as well as exercising the constitutional duty to certify electoral votes for the 2020 election,” Rao wrote. “These communications were privileged, and we leave it to the district court to implement this decision on a communication-by-communication basis.”
Howell’s task could be challenging, as the appeals court said not all information gathered to inform its votes or lobbying other members is privileged, only “entire” communications or “essential” to this job or considered privileged according to judicial precedents.
The decision is a setback for Smith and adds to more than a year of delays investigators have encountered in seeking Perry’s records, but the ruling could also have a significant impact any time the Department of Justice tries to investigate the actions of members of Congress.
The ruling is likely to embolden Republicans and Democrats on Capitol Hill, which it does jointly intervened in the case to argue against the Justice Department’s efforts to limit the interpretation of the Speech or Debate Clause.
But the ruling also places limits on the meaning of “informal” fact-finding that can point to future rulings that are less favorable to Congress. At times, the panel concluded that Perry’s interpretation of the clause was “overbroad” or too broad to support.
“To the extent that Representative Perry also suggests that the privilege extends to all factual conversations a member has with persons outside Congress, our case law provides no support for that contention,” the panel wrote.
The panel also agreed that Smith could access some of the contents of Perry’s phone unrelated to Perry’s legislative work, such as newsletters or documents that included talking points.