Eisen, Watt, & Wertheimer On Just Security: “Speech Or Debate” Immunity Will Not Protect Rep. Scott Perry’s Phone
On Thursday, the DC Circuit Court of Appeals held a hearing on whether Rep. Scott Perry (R-PA), whose activities are being investigated as part of the Justice Department’s Jan. 6 criminal investigation, is protected by the Constitution’s Speech or Debate Clause. Perry played an outsized role in the attempted interference in the 2020 presidential election and the court must decide whether criminal investigators can gain access Perry’s cell phone data.
“A DC Circuit case – the Rayburn House decision – makes clear that there is indeed a mechanism for conducting a criminal investigation into a Representative’s activities,” Ambassador Norman Eisen (ret.), Siven Watt, and Democracy 21 President Fred Wertheimer write in a new report published on Just Security.
That case, they write, “also teaches that there is a lawful way to capture electronic evidence that is not covered by Speech or Debate protections and segregate it from what may be protected.”
In their Just Security report, the authors explain the law and how it should and will apply, including in light of Thursday’s hearing, and discuss the possible Supreme Court review that likely will follow.
To the extent the Justice Department seeks data from Perry’s phone concerning conduct that qualifies as non-legislative, the Constitution’s Speech or Debate clause privilege does not apply, Eisen, Watt, and Wertheimer write. “The Justice Department should have ample room to obtain the most relevant information from Rep. Perry’s phone. The Speech and Debate Clause has ‘finite limits’ and the specific facts of the congressman’s communications fall outside those limits.”
Perry’s interference in the 2020 presidential election is well documented, Eisen, Watt, and Wertheimer write. The authors detail Perry’s extensive involvement in Trump’s efforts to overturn the 2020 election.
Perry, they write:
- Was “involved in early post-election messaging strategy” and an “early supporter” of the Stop the Steal campaign.
- “Often teamed up” with Rep. Jim Jordan (R-OH) to spread lies about the election, including at a Stop the Steal rally in Pennsylvania two days after the election.
- Texted Trump Chief of Staff Mark Meadows with advice from a “cyber forensic team” Perry was in touch with after the election, which included a link to a conspiracy theory about the vote count in Pennsylvania. “It was one of many text messages that would follow.”
- Was involved in “discussions with White House officials about Vice President Pence’s role on January 6th as early as November 2020,” according to the House Jan. 6th Committee’s final report.
- Joined 26 other Republican Members of Congress on a December 9 letter requesting that Trump “direct Attorney General Barr to appoint a Special Counsel to investigate irregularities in the 2020 election.” The letter came more than one week after Barr had already told the press that there was zero evidence of significant fraud which could affect the outcome of the election.
- Along with 10 other House Republicans, met with Trump at the White House on December 10 to discuss their plan to object to the certification of the Electoral College vote on Jan. 6.
- Spearheaded, in the early hours of January 7, the Republicans’ objection to certifying the results in Pennsylvania.
- Continues to make clear his skepticism in the 2020 election results.
Eisen, Watt, and Wertheimer write:
“But ‘perhaps most pivotally,’ as the Jan. 6 Select Committee noted, was Perry’s role in the plan to supplant the acting Attorney General with Trump loyalist Jeffrey Clark, in an effort to enact the ‘fake electors’ plan. Perry introduced Clark to Trump, and together they had a shared goal: ‘to enlist Clark to reverse the Department of Justice’s findings regarding the election and help overturn the election outcome’ (Jan. 6th final report). Evidence by the Senate Judiciary Committee and the January 6th Select Committee both show that following Perry introducing Clark to Trump, Perry sent several text messages to Meadows […] pressing that the DOJ official be speedily promoted to the very top of the Department to effectively carry out the plan.”
Perry has been of interest to Justice Department prosecutors since at least June 2022 for his involvement in efforts to overturn the 2020 election, Eisen, Watt, and Wertheimer write.
Last August, FBI agents executed a court-authorized warrant to seize Perry’s personal cell phone. (In June, FBI agents had seized the phones and other electronic devices of Clark and Eastman.)
After seizing Perry’s phone, its data was copied and the phone was returned the same day. The Justice Department then asked the U.S. District Court for the District of Columbia for permission “to begin combing through the records.” Perry immediately filed a lawsuit following the seizure, raising Speech or Debate Clause claims. The dispute went under seal, and in mid-October Perry’s legal team and Justice Department investigators took part in a secret hearing before the judge. Perry subsequently dropped his suit. The status of the behind-closed-doors case is unknown.
In late December, the judge ruled in favor of the Justice Department’s request to comb through the data on Perry’s cell phone.
Last month, however, a three-judge appeals court panel in DC, which included two Trump appointees and an H.W. Bush appointee, put a temporary stay on the ruling.
A motion was filed by the Reporters Committee for Freedom of the Press to “unseal the appeals court’s order and all briefing in the case” and requesting that oral arguments in the case be open to the press and public. The DC Circuit granted the latter request in part, with a public hearing to be immediately followed by one closed to the public.
That hearing was held on Thursday.
During the public part of the hearing, oral arguments were made on two issues relevant to the Speech or Debate Clause:
- Whether the Speech or Debate Clause of the Constitution protects informal legislative fact-finding by individual Members of Congress in the absence of official authorization; and
- Whether the Speech or Debate Clause’s non-disclosure privilege extends to communications between Members of Congress and either private parties or members of the Executive Branch.
Eisen, Watt, and Wertheimer examine in depth the Constitution’s Speech or Debate clause which provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.”
The clause, they emphasize, “does not provide Members of Congress with carte blanche to carry out any action in the name of official duty and escape complete scrutiny and accountability.”
As the Supreme Court has repeatedly stressed, they write, “the purpose of the Clause was not ‘to make Members of Congress super-citizens, immune from criminal responsibility,’ Brewster, 408 U.S. at 516. nor to offer privileges to those that ‘violate an otherwise valid criminal law in preparing for or implementing legislative acts.’”
Eisen, Watt, and Wertheimer offer a detailed legal analysis of the Perry case, focusing on key issues argued before the court of appeals, and also examining the law on matters which do not fall within the protection of the Speech or Debate Clause.
Read the full report on Just Security.
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