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Why the fight over Rep. Scott Perry’s phone is so important

Republican Rep. Scott Perry is fighting to keep the contents of his phone hidden from the Justice Department. It’s not going especially well.


Among the most surprising elements of the Justice Department’s investigation into the Jan. 6 attack came to public light in August. Republican Rep. Scott Perry of Pennsylvania, the chair of the right-wing House Freedom Caucus, announced that three FBI agents approached him while he was traveling with his family, and one agent “seized” his cellphone.

As we discussed at the time, it’s not at all common for federal lawmakers to approach a sitting member of Congress as part of an apparent law enforcement operation. It’s even less common for the FBI to take a lawmaker’s phone.

In the six months that followed, the GOP congressman waged a lengthy fight to prevent law enforcement officials from accessing and using the contents of cellphone. As Politico reported, Perry’s efforts haven’t gone especially well.

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.

At issue are 2,219 documents, which the Republican hoped to keep from investigators, arguing that they were shielded as part of the Constitution’s “speech or debate” clause (which keeps coming up in a variety of contexts), including his private interactions with the White House.

The judge in the case didn’t buy it: Howell allowed Perry to withhold 161 of the items, but she also ordered him to disclose the rest to the Justice Department, including his 960 interactions with the Trump administration, concluding that his lawyers’ “astonishing” argument would elevate members of Congress above the law.

Note, Howell’s ruling was handed down in December, but it wasn’t disclosed until Friday. A Washington Post report explained that the judge in the case “said the Justice Department agreed to unseal details Friday because a federal appeals court held fast-tracked public arguments this week after staying Howell’s order and approved the release of her key opinions to certain members of Congress and the House general counsel’s office.”

In other words, as things stand, the Justice Department still doesn’t have the contents of the Republican’s phone because of an appeals court order. Meanwhile, some elements remain under seal, including federal prosecutors’ specific allegations about the contents of Perry’s phone and how they might relate to alleged crimes.

But the fact that Howell has seen the information in question, and rejected the congressman’s claims almost entirely, raises some interesting possibilities. Indeed, in case anyone needs a refresher, let’s revisit our earlier coverage and review just how important a figure Perry is:

  • The Jan. 6 committee highlighted a Dec. 21, 2020, White House meeting focused on the Republican scheme to overturn the presidential election. Among the participants was Scott Perry.
  • A month earlier, we learned at a different Jan. 6 hearing about GOP lawmakers who allegedly sought pardons from Trump before he left office. Among them was Scott Perry.
  • Around the same time, we saw testimony from former White House aide Cassidy Hutchinson, who said under oath that Trump discussed ideas with allies about going to the Capitol on Jan. 6. Among those the then-president talked to about this was Scott Perry.
  • A month before that, we learned of allegations that then-White House Chief of Staff Mark Meadows literally set fire to papers in his office after a meeting with a congressional Republican. The lawmaker was Scott Perry.
  • The text messages Meadows shared with the Jan. 6 committee showed that one member of Congress sent some truly nutty messages to the Trump White House after the 2020 election, pushing the ideas that secret Italian satellites rigged American voting machines and that the Trump-appointed CIA director was in cahoots with the British. The member was Scott Perry.
  • In fact, just weeks after the Jan. 6 attack, we learned how Trump came to be in contact with anti-election lawyers such as Jeffrey Clark, who was a relatively obscure Justice Department official at the time. It turns out, one House Republican helped put Clark on the then-president’s radar. The Republican was Scott Perry.

Through a spokesperson, the Freedom Caucus chair told the Post that he’s considered a witness, not a subject, in the investigation. Watch this space.

This post is a revised version of our related earlier coverage.