Jack Smith's access to Trump-loving congressman's phone limited by court: report

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit found that prosecutors working for special counsel Jack Smith overreached by accessing the phone records of pro-Trump Rep. Scott Perry (R-PA) as part of the investigation into the 2020 election subversion plot, reported POLITICO on Wednesday.

The judges, two of whom were appointed by former President Donald Trump, ruled that Perry's phone records are shielded by the Speech and Debate Clause of the Constitution, which limits legal proceedings against members of Congress for things they say in the course of their official legislative duties.

“While elections are political events, a Member’s deliberation about whether to certify a presidential election or how to assess information relevant to legislation about federal election procedures are textbook legislative acts,” wrote Judge Neomi Rao.

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However, the court also ruled that this protection is not unlimited. "We also reject Representative Perry’s proposition that informal factfinding is always a legislative act," wrote Rao, ordering lower court Judge Beryl Howell, who previously ruled in favor of the search, to re-examine the case using this standard. The judges also said prosecutors could examine contents of the phone unrelated to Perry's direct communications.

Perry, the current chair of the far-right House Freedom Caucus, was heavily involved in pushing conspiracy theories about the 2020 presidential election being rigged, and was in contact with Trump allies as they were plotting to overturn the vote. Perry has not been charged as part of Smith's investigation; however, the FBI seized his phone as part of the probe before Smith was appointed, and DOJ prosecutors sought a second warrant clarifying that they could search the phone.

Howell will now have to sort out which communications on the phone count as privileged under the order, unless Smith moves to appeal the decision.