Court delivers sealed ruling on level of access Jack Smith will have to Scott Perry's phone

WASHINGTON – A federal appeals court returned a case Wednesday to U.S. District Court, to determine what access to grant Justice Department special counsel Jack Smith to the contents of Rep. Scott Perry’s cellphone, as part of the investigation into Donald Trump’s attempts to overturn the 2020 election.

Smith subpoenaed the phone because Perry, R-Pa., urged Trump to pursue false claims of election fraud and reject presidential electors for President Joe Biden from his state and others.

But Perry opposed the prosecution move by arguing his phone was an extension of his congressional office and therefore off limits to an executive branch investigation because of the Constitution’s speech and debate clause.

The three-judge panel of the D.C. Circuit Court of Appeals issued a 29-page sealed ruling in the case. A docket entry accompanying the decision said the panel unanimously sent the case back to U.S. District Judge Beryl Howell, "to apply the correct standard" as described in the opinion for Perry's communications with people in the executive branch or outside the federal government.

Both sides in the case were asked to file written arguments by Sept. 19 about whether to unseal documents in the case.

Judges Gregory Katsas and Neomi Rao were appointed by Trump and Karen Henderson was appointed by George H.W. Bush.

Perry, who is head of the House Freedom Caucus, had called the FBI's seizure of the phone "banana republic tactics" when he announced the search in August 2022.

Perry wasn’t indicted with Trump in the federal case alleging the former president conspired to defraud the country and obstruct Congress from counting Electoral College votes.

During Smith's investigation, Howell ruled that 2,055 records could be released, while 161 records were properly withheld. Perry sought to block the release of all the records. She ruled in the case that has mostly remained sealed that the records were not integral to his consideration of passage or rejection of legislation.

The House committee that investigated the Capitol attack on Jan. 6, 2021, found Perry tried to help Trump overturn the election results.

Perry introduced Jeffrey Clark, who was then an assistant attorney general, to Trump after the 2020 election. Clark has been indicted with Trump on charges he drafted a letter to state legislative leaders in a half-dozen states for the attorney general to sign urging them to reject electors for President Joe Biden because of debunked concerns about election fraud.

Perry texted Mark Meadows, then White House chief of staff, repeatedly Dec. 26 to 28, 2020, pressing for Clark to be elevated within the department. Trump considered appointing Clark as attorney general in early January 2021 but didn’t follow through after top lawyers in the Justice Department and White House counsel’s office threatened to resign.

On Dec. 27, Perry called Acting Deputy Attorney General Richard Donoghue, to criticize the FBI and to say Clark “would do something about this,” according to Donoghue.

After the Jan. 6 riot, Perry contacted the White House asking for a presidential pardon, according to the committee’s final report.

Perry refused to testify before the committee.

During oral arguments in February, Perry’s lawyer, John Rowley, argued the phone was essentially an extension of the lawmaker’s office and thus protected from investigation.

But Justice Department attorney John Pellettieri argued the constitutional protections should cover only a lawmaker’s deliberations linked to a legislative purpose, excluding communications outside Congress.

This article originally appeared on USA TODAY: Rep. Scott Perry's phone case gets sealed ruling from federal court