By Sarah N. Lynch and Jacqueline Thomsen
WASHINGTON (Reuters) -A U.S. Justice Department attorney urged a federal appeals court on Thursday not to block a Republican congressman’s cellphone from investigators working on a probe into efforts by then-President Donald Trump to overturn the result of the 2020 election.
U.S. Representative Scott Perry – a Trump ally who helped spread false claims that the 2020 election was stolen through widespread voting fraud – has sought to prevent the Justice Department from reviewing the contents of his cellphone since it was seized last summer.
At the heart of the legal dispute is whether the contents of his cellphone are shielded from disclosure under a provision in the U.S. Constitution that gives Congress members immunity from civil litigation or criminal prosecution for actions that arise in the course of their legislative duties.
Perry’s conduct is under scrutiny by Special Counsel Jack Smith’s office because of the prominent role he played in the lead-up to the Jan. 6, 2021, attack on the U.S. Capitol by thousands of Trump supporters trying to block Congress from certifying Democrat Joe Biden’s election victory.
Perry’s attorney John Rowley argued on Thursday that private phone calls with people outside of Congress were part of Perry’s “informal legislative fact-finding” in the lead-up to the Jan. 6, 2021 certification of the 2020 presidential election. He said such communications are constitutionally protected from disclosure to the Justice Department.
Rowley asked the appellate court to reverse a lower court decision, after Chief Judge Beryl Howell previously ruled that Perry’s communications were not within a “legitimate legislative sphere.”
“That activity is protected,” Rowley said. “It’s an absolute privilege.”
John Pellettieri, a Justice Department lawyer, urged the court to dismiss the appeal or affirm Howell’s prior ruling. He argued that calls to outside parties by a single lawmaker to help research an issue is “not sufficiently integral” to the congressional lawmaking process.
An investigation by the U.S. House of Representatives’ Jan. 6 committee last year revealed Perry was in frequent contact with Trump White House officials in the weeks before the attack.
The three-judge panel on Thursday did not directly indicate how they may rule on the dispute.
Judges Gregory Katsas and Neomi Rao, both appointed by Trump, sounded doubtful that Perry’s communications with the White House and other people outside of the legislative branch should be automatically shielded from the Justice Department.
“This seems a little different, maybe odd, in that the privilege holder in your theory has a privilege that extends to communications with anyone in the world,” Katsas said.
Perry also played a crucial behind the scenes role in lobbying Trump to appoint former Justice Department official Jeffrey Clark as the acting attorney general so that Clark could launch investigations into Trump’s false election fraud claims.
Trump ultimately declined to appoint Clark, after top Justice Department officials threatened to resign.
Federal agents last summer seized Clark’s phone as part of the criminal investigation into efforts to overturn the election.
Agents executing a search warrant at Clark’s home cited probable-cause evidence of conspiracy, false statements and obstruction of justice.