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Appeals Court Limits Jack Smith’s Effort To Access GOP Rep. Scott Perry’s Phone

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Special Counsel Jack Smith’s attempts to obtain the cell phone data of Pennsylvania Republican Representative Scott Perry, rumored to have been involved in former President Donald Trump’s supposed efforts to tamper with the 2020 election results, were partially hindered by a federal appeals court panel.

The three-judge board of the D.C. Circuit Court of Appeals overturned part of a lower court ruling that would have enabled Smith and his team to access much of the information they sought from Perry’s phone. This decision was made confidentially.

“The FBI seized the device from Perry in August 2022, under a court-authorized search warrant, but has yet to access relevant documents and communications after Perry moved to prevent it, citing his legal privileges as a federal lawmaker and the authority of Congress to be free of interference from the executive branch,” Politico reported.

“The dispute began before Attorney General Merrick Garland named Smith as a special counsel last November but appears to have continued on under Smith’s auspices after he took over ongoing investigations into interference with the certification of the 2020 election results,” the outlet added.

The decision of the appeals court in Peter Navarro’s criminal trial on Tuesday was met with delight by Perry’s attorneys, who had been fighting for weeks against prosecutors’ attempts to access a member of Congress’ phone.

The three-judge panel ruled that they disagreed partially with U.S. District Court Judge Beryl Howell’s decision, only blocking a small number of files taken from Perry’s phone while granting access to the majority.

Although the 29-page ruling remains confidential, it is possible that the U.S. Supreme Court or even all members of the appeals court could review it and render a different verdict.

Judge Neomi Rao, a Trump appointee, and Judge Karen LeCraft Henderson, a George H.W. Bush nominee, authored the main opinion of the appeals court; another Trump appointee, Judge Greg Katsas, submitted a six-page concurring opinion.

With the details of their opinions not being disclosed yet, it was hard to decipher any differences in their views on how to interpret the “speech or debate” clause of the Constitution which grants immunity from criminal charges for actions taken as part of an official role.

Perry’s attorneys and the prosecution were given a week by the D.C. Circuit panel to respond to an order, which was made public Tuesday, on whether any parts of their rulings should be kept confidential.

This order was in reference to Howell’s counterargument that Perry’s research into election fraud, for the purpose of informing the executive branch, rendered those contacts immune from speech-or-debate restrictions; this being contrary to Perry’s statement that most of the information sought by Smith’s team is blocked by constitutional clause and thus off-limits to law enforcement.

The serious opinion of the appeals court is expected to be closely scrutinized on Capitol Hill due to the far-reaching implications of any interpretation of the speech-or-debate clause for legislators.

“House Democrats and Republicans joined together to intervene in Perry’s case — even without knowing the details of what prosecutors were seeking from Perry — to argue against any sweeping new rulings that would weaken speech-or-debate protections for lawmakers.

The House’s friend-of-the-court brief in the case remains under seal,” Politico noted in its report.

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Joe Messina

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