Rep. Scott Perry (R-PA) could have a treasure trove of information about the plot to overturn the 2020 presidential election on his phone, argued former federal prosecutor Glenn Kirschner on MSNBC Monday — and his argument for privileging those communications is already failing in court.
Perry, who played a key role in funneling election conspiracy theories to the Justice Department during the election, is trying to invoke the Speech and Debate Clause of the Constitution to argue his these communications are confidential legislative matters, the same strategy being used by former Vice President Mike Pence to try to defeat a subpoena from special counsel Jack Smith in the Justice Department investigation of 2020 election interference.
"Here's what's not shielded, according to the judge," said anchor Nicolle Wallace. "Internal House GOP newsletters, not shielded. Perry's personal media strategy — that that even is a category is something — not shielded. And contacts with colleagues about 2020 election, not shielded. It seems, Glenn, that the third could really be be a bonanza in terms of telling the story of the conspiracy to overturn the 2020 election results from inside the House of Representatives."
"I think a lot of this could end up being some pretty blockbuster stuff with respect to these communications," said Kirschner. "If we connect some of the dots here, I think we always have to start with the fact that a federal judge, a magistrate judge in Pennsylvania, found probable cause that there was evidence of crime in Scott Perry's phone. Once the phone was seized and it was imaged, the prosecutors made a copy of it, we need to remember that the prosecutors have never been able to look at it. What they did was they just handed it over to Chief Judge Beryl Howell for an in-camera review. The prosecutors still don't know what is in those messages. They gave Representative Perry an opportunity to lodge his Speech or Debate Clause privilege."
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"This is what I find so intriguing," Kirschner continued. "Representative Perry, in motions he filed with Judge Beryl Howell, said, I believe that 2,219 of my communications, e-mails, text messages ... enjoy Speech or Debate privilege and the prosecutors should not be permitted to look at them. Now, usually, Nicolle, when we litigate issues, the prosecutors know what we're litigating. We know the universe of facts and evidence and information, so we can take a position about, you know, what our argument is on executive privilege. But the prosecutors knew nothing. They just gave it to Beryl Howell. And on her own, without prosecutors ever having to argue anything, she said, uh, no, Representative Perry, 2,055 of your messages do not enjoy Speech or Debate Clause privilege."
"Which is perhaps no surprise given Perry asked for a pardon for his conduct on and around January 6th," added Kirschner. "Are we shocked that the 2,000-plus messages that Beryl Howell said are not privileged really don't involve robust debate on legislation?"
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