The dispute began before Attorney General Merrick Garland appointed Smith as special counsel last November, but appears to have continued under Smith’s auspices after he took over ongoing investigations into interference with the certification of 2020 election results.
Smith’s team could seek review of the decision by the full appeals court justices or by the Supreme Court. Tuesday’s decision may therefore not be the final word. A spokesperson for Smith had no immediate comment on the decision or whether prosecutors would seek further reconsideration.
Perry’s lawyers were in court on Tuesday morning for another case – the criminal trial of former Trump aide Peter Navarro – and were seen reading the ruling shortly after it was released. Although they declined to discuss specifics, the lawyers seemed optimistic about the outcome.
The new ruling is an important step for both Perry and the House of Representatives, which have sounded the alarm over prosecutors’ efforts to gain access to a congressman’s phone.
Notably, while the case was argued in February, it took more than six months for the appeals court to issue a decision. It’s a surprisingly long review period for a matter that seemed urgent to prosecutors – and one that suggests the panel engaged in careful scrutiny of the records at issue.
Although the appeals court’s 29-page ruling remains sealed, the three-judge panel said in court docket Tuesday that it partially overturned U.S. District Court Judge Beryl Howell’s ruling, which granted prosecutors access to most of the records seized from Perry’s phone. , blocking only a few dozen that she deemed beyond the reach of federal investigators.
Trump-appointed Judge Neomi Rao wrote the lead opinion for the appeals court, joined by President George HW Bush-appointed Judge Karen LeCraft Henderson. Judge Greg Katsas, also appointed by Trump, filed a six-page concurring opinion. The reasons for a possible disagreement between the judges were not immediately clear since the opinions remain sealed.
At issue is the courts’ interpretation of the Constitution’s “speak or debate” clause, which grants members of Congress immunity from criminal prosecution relating to their official work. Perry argued that much of what Smith’s team sought is protected by this constitutional provision and should be barred to prosecutors.
Howell, however, disagreed, saying Perry’s independent efforts to investigate voter fraud — and to report it to the executive branch — render those contacts unprotected by speaking or debating immunity.
The appeals court held a public hearing in the case after partially unsealing the case under the watchful eye of the media, but part of the discussion still remained secret.
During the discussion, a Justice Department lawyer now assigned to Smith’s office argued that the speech or debate protection only applies to investigations by lawmakers as part of an investigation. or formal investigation, not those they undertake themselves. Rao and Katsas seem to disagree, suggesting that the DOJ’s wording is too narrow and that there is at least some protection for individual members of Congress acting alone.
Perry told POLITICO in February that he was pleased with the appeals court’s decision to stay Howell’s decision while it considers the case.
In an order released Tuesday, the DC Circuit panel gave Perry’s attorneys and prosecutors one week to indicate whether they believe parts of the rulings should be kept secret.
The appeals court’s opinion will likely be scrutinized closely on Capitol Hill, where any interpretation of the speech or debate clause has huge implications for lawmakers.
House Democrats and Republicans united to intervene in Perry’s case — even without knowing the specifics of what prosecutors wanted Perry to do — to oppose any sweeping new rulings that would weaken lawmakers’ protections in the matter. speech or debate. The brief of the friend of the House court in this case remains under seal.