11 months ago
A federal judge ruled Tuesday that Rep. Scott Perry must disclose to federal prosecutors more than 1,600 emails, text messages and other communications related to the investigation into Donald Trump and his allies’ bid to subvert the 2020 election.
Chief U.S. District Judge James Boasberg concluded that the vast majority of the messages Perry exchanged — some with other members of Congress, some with members of the Trump administration and some with allies outside of government — could not be shielded from prosecutors by Perry’s constitutional protections as a member of Congress.
Rather, Boasberg concluded, the 1,659 exchanges had little to do with Perry’s job as a legislator and therefore were not subject to the Constitution’s “speech or debate” clause, which prohibits prosecutors and courts from prying into the official business of Congress.
The records in question could help fill crucial gaps in special counsel Jack Smith’s investigation. An inadvertently disclosed court document obtained last month by POLITICO revealed key aspects of the messages Perry had sought to shield from Smith’s team, including exchanges with Trump’s alleged co-conspirators in the effort to disrupt the transfer of power. The messages showed Perry as a crucial go-between for Trump and his allies on key aspects of their effort in the final frantic weeks of Trump’s presidency.
An attorney for Perry said he has not yet determined whether he will appeal Boasberg’s ruling.
The FBI seized Perry’s phone in August 2022 in connection with its investigation into former Justice Department official Jeffrey Clark, a key Trump ally in his bid to prevent the transfer of power. Perry introduced Trump to Clark in the final weeks of his presidency and pressed Trump to elevate Clark to the top of the Justice Department. Trump came close to appointing Clark acting attorney general — part of a last-ditch plan to use the Justice Department to raise doubts about the outcome of the election — before a mass resignation threat by DOJ and White House officials led Trump to back down.
Boasberg’s order largely endorses a ruling made nearly a year ago by his predecessor, U.S. District Judge Beryl Howell, who found that Perry was required to disclose 2,055 communications he had attempted to shield, with only about 200 others protected from prosecutors. Howell ruled that Perry’s “informal” efforts to probe election fraud were not covered by the “speech or debate” clause because he was not authorized by any House committee to conduct the investigation.
Howell also ruled that many of Perry’s contacts with members of the Trump administration could not be shielded because he was seeking to influence the executive branch and pursuing political ends rather than legislative ones. In other communications, he was seeking to influence the Pennsylvania state legislature.
Perry appealed Howell’s ruling in January, and the D.C. Circuit Court of Appeals quickly halted her decision, considering the matter for another eight months before ruling that Howell had gone too far. Instead, the circuit ordered Boasberg — who by then had succeeded Howell as chief of the Washington, D.C. district court — to review all 2,055 emails Perry was attempting to shield and decide whether they could be disclosed.
Boasberg ultimately agreed that nearly all of Howell’s initial determinations were correct. While some of Perry’s contacts with executive branch officials or outside allies related to his legitimate work as a legislator, the vast majority, he determined, were “non-legislative” communications that could not be shielded from investigators.
Boasberg also said messages Perry exchanged about efforts to urge Vice President Mike Pence to resolve disputes about electoral votes were too tangential to Perry’s own legislative duties to qualify for protection. Pence ultimately concluded he did not have the power to determine whether particular slates of electoral votes were valid.
Josh Gerstein contributed to this report.
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