Michael A Terrell <mike.am.surreal@earthlink.nut> wrote in
news:eHwMM.30438$i1yc.7526@fx15.iad:

> Democrats eating shit sandwiches again.

A top House conservative�s conversations with allies in Congress and the
Trump White House about overturning the 2020 election are off-limits to
special counsel Jack Smith, an appeals court ruled in a newly unsealed
court opinion.

A three-judge panel of the D.C. Circuit Court of Appeals concluded that
prosecutors� effort to access the cellphone communications of Rep. Scott
Perry (R-Pa.) with colleagues and executive branch officials violated his
immunity under the Constitution�s Speech or Debate clause, which shields
members of Congress from legal proceedings connected to their official
duties.

�While elections are political events, a Member�s deliberation about
whether to certify a presidential election or how to assess information
relevant to legislation about federal election procedures are textbook
legislative acts,� Judge Neomi Rao wrote in the opinion issued last week.

The decision breaks new ground in a decadeslong tug-of-war between
Congress and the executive branch. For the first time, an appeals court
has held that lawmakers� cellphones are subject to the same protections as
their physical offices. And it is the first significant legal setback for
Smith in his bid to obtain evidence about involvement by allies of then-
President Donald Trump in his effort to subvert the 2020 election.

It�s unclear whether Smith will appeal the decision to the full bench of
the D.C. Circuit or to the Supreme Court. His office declined to comment,
as it did last week when the court released an order broadly outlining the
outcome of the fight.

The decision from Rao, a Trump appointee, was joined by another Trump
appointee, Judge Greg Katsas, and by Judge Karen LeCraft Henderson, who
was nominated by President George H.W. Bush. However, Katsas filed a
separate concurring opinion saying he viewed the privilege for lawmakers
more narrowly than the other judges on the panel, but the disagreement
wasn�t meaningful in Perry�s case.

The FBI seized Perry�s phone under a court-approved search warrant in
August 2022, before Smith was tapped as special counsel but as the Justice
Department had ramped up its investigation of Trump�s actions preceding
the Jan. 6, 2021, attack on the Capitol. Prosecutors, however, did not
immediately access Perry�s phone and instead sought a second search
warrant governing its ability to review Perry�s communications with other
members of Congress, the executive branch and others related to the 2020
election.

In the new ruling, the three-judge D.C. Circuit panel overturned a lower-
court ruling by U.S. District Judge Beryl Howell that had largely sided
with the Justice Department�s effort to access Perry�s phone. Howell
argued that Perry�s �informal� fact-finding about the 2020 election was
not protected by the Speech or Debate clause and could not be shielded
from DOJ�s review.

But the appeals court rejected that, deciding that lawmakers don�t need to
be acting pursuant to some official authorization such as a committee
inquiry in order to have their materials protected by the Speech or Debate
clause. Still, the appeals judges said not every effort a lawmaker makes
to seek information was entitled to automatic protection.

�We disagree with the district court�s holding that informal factfinding
is never a legislative act. But we also reject Representative Perry�s
proposition that informal factfinding is always a legislative act,� Rao
wrote.

The appeals court panel sent the matter back to Howell to apply these new
rules to her original decision.

�Representative Perry�s conversations with other Members concerned the
passage of proposed legislation as well as the exercise of the
constitutional duty to certify the electoral votes from the 2020
election,� Rao wrote. �These communications were privileged, and we leave
it to the district court to implement this holding on a communication-by-
communication basis.�

Howell�s task could be a challenging one, since the appeals court said not
all information lawmakers gather to inform their votes or lobbying of
other members is privileged, only communications �integral� or �essential�
to that work or deemed privileged under earlier court precedent.

The decision is a setback for Smith and comes on top of more than a year
of delay that investigators have encountered in seeking Perry�s records,
but the ruling could also have significant impact any time the Justice
Department seeks to investigate the actions of members of Congress.

The ruling is likely to hearten Republicans and Democrats on Capitol Hill,
who had jointly intervened in the case to argue against the Justice
Department�s efforts to narrow the interpretation of the Speech or Debate
clause.

But the ruling also set out limits to the meaning of �informal� fact-
finding that may point to future rulings that are less favorable to
Congress. At times, the panel concluded that Perry�s interpretation of the
clause was �overbroad� or too sweeping to be supported.

�To the extent Representative Perry also suggests the privilege extends to
any and all factual conversations a Member has with individuals outside
Congress, our caselaw offers no support for that assertion,� the panel
wrote.

The panel also agreed that Smith could access some of the contents of
Perry�s phone that had no relationship to Perry�s legislative work, such
as newsletters or documents that included talking points.

https://www.politico.com/news/2023/09/13/court-smith-perry-2020-election-
00115682