WASHINGTON (Reuters) – A U.S. appeals court has ruled that some of the contents of Republican Representative Scott Perry’s cellphone should be shielded from the criminal probe into former President Donald Trump’s efforts to overturn his 2020 election loss, but found that some of his other communications may not be protected.
The ruling by a three-judge panel of the U.S. Court of the Appeals for the District of Columbia Circuit – dated Sept. 5 and unsealed publicly on Wednesday – handed a partial victory to the Trump ally who helped spread false claims that the election was stolen through widespread voting fraud.
The judges found that Perry’s communications with other members of Congress discussing the certification of the 2020 election results “are quintessential legislative acts” that can be shielded from executive branch agencies. But they found that not all of Perry’s texts and other communications with people outside of Congress were necessarily protected, and ordered a lower court to go back and review each communication.
Perry, a retired U.S. Army National Guard brigadier general who represents a district in Pennsylvania in the U.S. House of Representatives, has sought to prevent the Justice Department from reviewing the contents of his cellphone since it was seized by the FBI last year.
“The D.C. Circuit’s decision is a full-throated vindication of Congress’ protection from intrusive and overreaching inquiry into the legislative deliberations of Members of Congress,” John Rowley, one of Perry’s attorneys, said in a statement.
U.S. Special Counsel Jack Smith has brought four criminal charges against Trump, the front-runner in the race for the Republican nomination to face Democratic President Joe Biden in the 2024 election, related to efforts to overturn the election.
Trump has pleaded not guilty and called the charges politically motivated. He also has pleaded not guilty to criminal charges brought in three other cases, including in Georgia where he faces state charges related efforts to undo his 2020 election loss in that state.
A spokesperson for Smith declined to comment on the Perry ruling.
Perry’s conduct is under scrutiny in Smith’s investigation because of the prominent role he played ahead of the Jan. 6, 2021, attack on the U.S. Capitol by Trump supporters who sought to block Congress from certifying Biden’s election victory.
The legal dispute focuses on whether the contents of Perry’s cellphone are shielded from disclosure under a provision of the U.S. Constitution that gives members of Congress immunity from civil litigation or criminal prosecution for actions that arise in the course of their legislative duties.
Justice Department attorneys in February had urged the D.C. Circuit to uphold a ruling by Judge Beryl Howell, who had found that Perry’s communications were not within a “legitimate legislative sphere” and therefore could be reviewed by the FBI.
The panel included Judges Gregory Katsas and Neomi Rao, both appointed by Trump, and Judge Karen Henderson, appointed by Republican former President Ronald Reagan.
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