According to Rep. Scott Perry the speech and debate clause in the constitution protects members of congress who are plotting a coup with the president of the United States. One judge doesn’t think so. It remains to be seen if others do:
The chief judge of the federal district court in Washington, D.C., secretly rejected Rep. Scott Perry’s bid to shield more than 2,000 messages relevant to Justice Department investigators probing efforts by Donald Trump to subvert the 2020 election, according to newly unsealed court filings.
U.S. District Court Chief Judge Beryl Howell unsealed her extraordinary Dec. 28 decision on Friday evening, determining that the “powerful public interest” in seeing the previously secret opinion outweighed the need for continued secrecy.
Perry, a Republican lawmaker from Pennsylvania, had urged Howell to block the Justice Department from accessing 2,219 documents stored on his phone, which was seized and imaged by the FBI last August as part of the 2020 election investigation.
He claimed that the records reflected his efforts to research potential legislative decisions — like whether to vote to challenge election results on Jan. 6, 2021 — and therefore should be protected from disclosure by the Constitution’s speech or debate clause, a provision meant to safeguard lawmakers from pressure or intimidation by the executive branch.
But Howell said Perry had taken an “astonishing view” of his immunity that would effectively put members of Congress above the law and free of political consequences for their actions. She ordered him to disclose 2,055 of the documents he sought to withhold — including all 960 of his contacts with members of the executive branch, which she said are entitled to no constitutional protection at all. Some 161 items, she said, were proper to withhold.
“What is plain is the clause does not shield Rep. Perry’s random musings with private individuals touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania,” Howell wrote in her 51-page December opinion.
Investigators have long scrutinized Perry’s contacts with Trump, as well as with Jeff Clark, a top Justice Department aide who Perry pushed Trump to install as attorney general in the waning weeks of his administration. Clark was seen by Trump and his allies as sympathetic to his bid to overturn the 2020 election results. The Jan. 6 select committee subpoenaed Perry to testify about his efforts but he refused to appear before the panel.
Prosecutors homed in on Perry last year, seeking his contacts with top figures connected to Trump, including Clark and attorney John Eastman, an architect of Trump’s last-ditch bid to remain in power despite losing reelection. And in August, Perry’s phone was seized by FBI agents while he was traveling with family.
Thus far, however, investigators have not had access to any of the records because, last month, a three-judge panel of the D.C. Circuit Court of Appeals agreed to stay Howell’s ruling. On Thursday, those judges heard both public and private arguments about the dispute. The stay remains in place as the appeals court considers whether to leave Howell’s ruling in place, set it aside or modify it in some way.
The judges — Karen Henderson, Gregory Katsas and Neomi Rao — appeared skeptical of the Justice Department’s position and the breadth of Howell’s ruling, although they discussed her stance only in broad strokes and the details of her opinions remained under seal until Friday.
But the appeals panel’s ultimate leanings remained unclear at the conclusion of the public argument session Thursday. The appeals judges seemed most concerned by Howell’s determination that Perry’s outreach about Jan. 6 was not protected by the speech or debate clause because he was not acting with formal House approval.
That determination was a centerpiece of Howell’s ruling, which she said was rooted in longstanding precedent.
“No matter the vigor with which Rep. Perry pursued his wide-ranging interest in bolstering his belief that the results of the 2020 election were somehow incorrect — even in the face of his own reelection — his informal inquiries into the legitimacy of those election results are closer to the activities described as purely personal or political,” Howell said.
John Rowley, an attorney for Perry, said in a statement: “As a Member of Congress, Mr. Perry had an obligation to be fully informed about his vote to certify the 2020 Presidential election. He is standing up to protect from Executive Branch intrusion the privileges afforded to all Representatives and Senators by the Speech or Debate Clause of the United States Constitution.”
Perry’s communications with the White House and the Justice Department appear to be at the center of one of the investigations now being headed by special counsel Jack Smith, who has been probing the pressure put on DOJ officials to express public concern about unsubstantiated election fraud claims in the 2020 election.
That pressure culminated in an effort to have Trump dismiss acting Attorney General Jeffrey Rosen and install Clark, then the assistant attorney general for environment and natural resources, as acting attorney general. However, after almost every senior Justice Department official threatened to resign, Trump abandoned the plan.
All these great protectors of constitutional privileges are just showing what an inadequate document it is turning out to be when power mad authoritarians are willing to challenge it. Let’s see if it holds up under all these cynical constitutional claims from this guy and Mike Pence and others who are twisting the intent for self-serving reasons.