DOJ Is Waging Court Battle to Access Rep. Scott Perry’s Phone
Rep. Scott Perry of Pennsylvania now chairs the Freedom Caucus in the House of Representatives. The Freedom Caucus has had remarkable consistency with regard to its leadership: Mark Meadows preceded Perry, which means that now two consecutive chairmen of the Freedom Caucus had an intimate involvement with the white-shoe end of the attempt to keep the previous president* in office in defiance of the expressed wishes of the United States of America. This is like the white-collar equivalent of having been the No. 3 man in al Qaeda, except with prosecutors incoming and not Hellfire missiles.
According to Cassidy Hutchinson’s testimony before the January 6 select committee, Perry was central to a plan that would have had the former president* accompany the mob to the Capitol. Further, Hutchinson told committee investigators that she saw Meadows burning documents immediately after a meeting with Perry, and that Perry had sought her help in obtaining a pardon from the former president*. As Politico reminds us:
The now-Freedom Caucus chair helped orchestrate a plan for Trump to replace DOJ leadership with figures likelier to support his groundless efforts to pressure states to override the election results. In addition, Perry was a frequent participant in strategy sessions and calls with Trump and other top aides, and the Jan. 6 select committee recovered several text messages between Perry and former Trump chief of staff Mark Meadows discussing plans for department leadership, as well as other matters connected to the 2020 election.
Quite naturally, then, the Department of Justice is very interested in Perry and, among other things, his phone, particularly what one might find thereupon in the way of evidence. Thus began a secret tug-of-war between the DOJ and Perry that seemed to have been settled in favor of the former at the end of last year by U.S. District Judge Beryl Howell.
But nothing about the legalizing in this case is forever. Again, from Politico:
In a sealed order issued earlier this month, the three-judge panel temporarily blocked a lower-court ruling that granted prosecutors access to Perry’s communications. The Dec. 28 ruling by U.S. District Court Judge Beryl Howell was the product of a secret, months-long legal battle by prosecutors who have been fighting the Pennsylvania Republican’s attorneys on the matter since August. The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.
As is inevitable at this point, House Speaker Kevin McCarthy involved himself and the monkey house over which he presides in these maneuverings on Friday. McCarthy has supported Perry in his argument that the DOJ has no right to his communications because they are covered by the Speech and Debate clause of the Constitution, which protects members of Congress from outside review of what they say in the pursuit of their professional duties.
After this story was first published Monday, McCarthy spokesperson Mark Bednar acknowledged the House has stepped into the legal fight about Perry’s communications. “The Speaker has long said that the House should protect the prerogatives of Article I. This action indicates new leadership is making it a priority to protect House equities,” Bednar said[…]Perry first challenged DOJ’s authority to access his communications in a public lawsuit in August, filed shortly after his phone was seized. He maintained that the Constitution’s Speech or Debate clause prohibited the government from accessing messages he might have sent in connection with his work as a member of Congress. Perry would soon drop the lawsuit, and the status of prosecutors’ efforts to access his records remained unclear.
You may recall that Sen. Lindsey Graham tried this same dodge to avoid testifying before the Atlanta special grand jury that’s been tasked with looking into the former president*’s attempt to retroactively ratfck the count in that state. Graham pursued his case all the way to the Supreme Court, only to get smacked down in November. Perry may well find himself similarly dispatched if his attempts to shield himself get that far. For now, everything is on hold until a hearing on February 23. The straight-line thinking on this says that of course it’s absurd to argue that the Speech and Debate clause would protect evidence of complicity in an attempt to overthrow an election—but straight-line thinking went sideways in these proceedings long ago.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.