One of several secret court proceedings surrounding special counsel Jack Smith’s investigations into former President Donald Trump will crack open Thursday with an appellate court hearing examining how much the Constitution shields the communications of a Republican congressman who played a role in Trump’s 2020 election subversion gambits.
Many details of the case – a dispute over a Justice Department bid to examine the contents of Pennsylvania Rep. Scott Perry’s phone – remain shrouded in secrecy.
But a panel of the US DC Circuit Court of Appeals – including two Trump nominees – will give the public access to part of its hearing in the case as it considers questions about the scope of the Constitution’s Speech or Debate Clause, which protects legislators from certain law enforcement actions.
How the DC Circuit views the 17-word constitutional provision could have implications not just for how the Trump investigations proceed, but what sort of immunity legislators have in all sorts of court proceedings going forward – particularly if the conduct is not clearly part of their formal activities in Congress.
“We want members of Congress to be able to do their jobs without constantly being hauled into court,” said Elliot Williams, a former Justice Department official who also worked for the Senate Judiciary Committee. “But it defies logic and probably the Constitution for Congress to think it can wave a wand and call it everything it touches quote ‘informal legislative factfinding.’”
The court has not made public the arguments the Justice Department is putting forward for why it should be allowed to access Perry’s phone. The briefs that have been filed in the case, as well as the decision a lower court judge issued that the circuit court is now reviewing, remain under seal.
Perry was identified by the House January 6 committee as a player in Trump’s efforts to weaponize the Justice Department. Perry did not comply with a subpoena from the committee for his testimony.
After the FBI seized Perry’s phone access, he filed a public lawsuit challenging investigators’ access to its contents. However, the wrangling between him and the Justice Department over from his investigators could view from his phone has played out in private court proceedings.
The Constitution’s Speech or Debate Clause says that “for any Speech or Debate in either House,” lawmakers “shall not be questioned in any other Place.” It functions as a separation-of-powers provision that prevents legislators from being arrested or being forced to participate in court proceedings for their legislative conduct on the congressional floor.
Courts have also said the clause extends to lawmaker conduct in congressional committee proceedings and that it also can cover congressional staff.
With its hearing Thursday, the DC Circuit will be examine whether the provision also applies to “informal legislative fact-finding” that lacks formal authorization by a chamber of Congress or a committee. The court has also asked the parties to prepare public arguments on whether the clause can cover a lawmaker’s communications with private parties or members of the executive branch.
The Speech of Debate Clause is “not a get out of jail free card,” said Thomas Spulak, who served as general counsel to the House of Representatives in the 1990s.
“It only protects them from questioning, being subpoenaed or anything else for any legislative acts,” Spulak said. “What we’re seeing today is a judicial analysis of what defines a legislative act.”
Already, the clause has been invoked in disputes arising from her investigations into 2020 election subversion, including when South Carolina GOP Sen. Lindsey Graham tried to resist a testimonial subpoena issued in the Fulton County grand jury probe.
The case before the DC Circuit involves the Justice Department’s criminal January 6 investigation. It only implicates Perry, according to a person familiar with the probe, even though other members of Congress could be a part of that federal inquiry.
In seeking to block DOJ’s access to Perry’s phone, his lawyers have pointed specifically to a 2005 ruling concerning an FBI search of then-Rep. William Jefferson’s congressional office in a bribery probe. The DC Circuit said that the Justice Department ran afoul of the constitutional clause by sorting through the Louisiana Democrat’s files without his consent.
Chief Judge Beryl Howell, however, ruled under seal that in Perry’s case, some of the communications on Perry’s phones wouldn’t fall under his legislative work because they weren’t sanctioned by any legislative authority, according to the source. She said that investigators could access certain materials on Perry’s phone that his lawyers had argued should be withheld. Howell’s ruling did, however, allow Perry to protect some of his phone contents under the Speech or Debate Clause.
To make her decision, Howell confidentially reviewed details about the information that was on Perry’s phone that the Justice Department sought, the source said. Prosecutors still haven’t gotten access to the more than 2,000 records they seek.
The DC Circuit Court of Appeals above Howell has put on hold her rulings, including investigators’ ability to access Perry’s phone records, as it hears arguments in the case on a much-quicker-than-usual timeline.
The three appellate judges who are considering the case Thursday are two Trump appointees, Judges Gregory Katsas and Neomi Rao, and Judge Karen Henderson, who was appointed by President George H.W. Bush. Henderson was on the circuit panel in the William Jefferson case and wrote a concurrence that took a much narrower view of the Speech or Debate Clause than the one embraced by the other judges on the panel.
The DC Circuit is also considering whether it has the authority to intervene at this point. The Justice Department has argued, according to the source, that there isn’t a reason the appellate court has jurisdiction at this point because the court has followed procedures laid out in the Jefferson case.
The House – with the approval of both majority and minority leadership – has sought to weigh in on the case, in a sign of how the Perry litigation could set the rules for how the immunity applies to all sorts of lawmaker activity going forward. The House’s filings, however, are not public.
Spulak noted that, practically speaking, the role of a congressperson has become “pretty broad” over time and that their legislative duties can go beyond talking about a specific piece of legislation, “since oversight is fundamental to the legislative process.”
In the Graham case, the US Supreme Court refused to block the Fulton County grand jury’s subpoena for his testimony. The justices stressed that the lower courts that ordered his appearance had said that the Speech or Debate Clause precluded him from questionsed about the “informal investigative fact finding” that was part of his legislative activity.
The DC Circuit’s consideration of the Perry case could flesh out what kind of informal fact-finding amounts to protected legislative activity.
“Depending on how broad you read what a legislative act is, it could permit members of Congress to really cover lots of their conduct within the speech or Debate Clause that I think we would generally not think would be covered,” said Neil Eggleston, a former White House counsel under President Barack Obama.