DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone

Earlier this month, I noted the difficulty created by the fact that 25 of the known witnesses or investigative subjects in the January 6 investigation were attorneys. Days later, I reiterated the difficulty presented by the six or so key participants in Trump’s suspected crimes who are members of Congress.

An important scoop from Politico demonstrates how difficult that is. It confirmed that a still-sealed appeal of a Beryl Howell decision pertains to DOJ’s efforts to get into Scott Perry’s phone.

The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.

The fight has intensified in recent weeks and drawn the House, newly led by Speaker Kevin McCarthy, into the fray. On Friday, the chamber moved to intervene in the back-and-forth over letting DOJ access the phone of Perry, the House Freedom Caucus chair, reflecting the case’s potential to result in precedent-setting rulings about the extent to which lawmakers can be shielded from scrutiny in criminal investigations.

The House’s decision to intervene in legal cases is governed by the “Bipartisan Legal Advisory Group,” a five-member panel that includes McCarthy, his Democratic counterpart Hakeem Jeffries, and other members of House leadership. The panel voted unanimously to support the House’s intervention in the matter, seeking to protect the chamber’s prerogatives, according to one of the two people familiar with the proceedings.


More than four months after the government obtained Perry’s phone, Howell sided with DOJ. While Howell’s rulings in the dispute remain under seal, along with any rationale that appeals court judges may have offered for their actions, some spare details about the fight appear in that court’s public docket.

Remember: When DOJ was trying to breach the privilege claims of lawyers Jeffrey Clark and Ken Klukowski, they appeared to do so, in part, by prioritizing Perry’s contacts, emails that could not be privileged given the clients that Clark and Klukowski should have been representing — for a significant period for both, US taxpayers. Yet for most of the time since then, DOJ has been blocked from getting the non-lawyer’s contacts, even though he played a central role in attacking the peaceful transfer of power.

I have not yet been proven correct in my speculation that one reason Merrick Garland appointed a Special Counsel was because the Republican majority in the House made it more difficult to investigate those members of Congress, starting with Perry, who participated in Trump’s coup attempt. But Jack Smith’s background in investigating former members of Congress sure will help this investigation.

63 replies
  1. harpie says:

    ArtI.S6.C1.1.3 Speech and Debate Privilege

    Article I, Section 6, Clause 1:
    The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. [ … Discussion…]

    • JVO says:

      “except Treason, Felony and Breach of the Peace”
      The Jan 6 activities seems to qualify as an exception but I’m not an originalist.

      • Ginevra diBenci says:

        Keep in mind that it was the Speech and Debate clause harpie quoted that Lindsey Graham attempted to invoke as a shield precluding him from testifying before Georgia’s Fulton County special grand jury. The fact that he ultimately did not succeed won’t prevent those like Scott Perry and Jim Jordan from trying the same gambit–that is, claiming their status as congress members protects them from scrutiny.

        • Silly butvTrue says:

          The measure of success for Graham was a mixed bag. He succeeded in having grand jury questioning limited to nothing that encroached on “inquiries that bear on protected legislative activity, including Graham’s information-gathering inquiries about Georgia’s then-existing election procedures and allegations of voter fraud.”

          Outside of those limits, questioning was allowed to proceed, like what he might have eaten for breakfast, etc.

          Additionally, the courts conceded Graham could mount objections to specific questions at the district court.

          So it was essentially a very large win for Graham that took off the table most of questioning about his GA inquiries; it was only a loss if one didn’t want to show up at all. But court essentially court made him show up but shielded from having to talk about what they needed to ask him about.

        • Ginevra diBenci says:

          Silly But True, you are right about the ruling, and we’ll see (or not) what questions Graham eventually answered (or not). I was just talking about his attempt avoid testifying at all on Speech and Debate grounds.

  2. Frank Probst says:

    I know this has probably been covered before, but how does the 5th Amendment fit in here? Telling the DOJ your passcode is obviously a situation where you’d rather remain silent. The DOJ has the phone. They technically have everything that’s stored on the phone; they just can’t read any of it. Where’s is the line here?

    • bmaz says:

      You never agree to give it to them. If they crack it, fine, whatever, but never affirmatively give it to them.

      • Commander Ogg says:

        IANAL. If they have a subpoena to search the phone and you refuse to give them the password can they go to a Judge for a contempt charge. Or does that not apply here?

        • punaise says:

          Asking for friend: Would it be a violation of the 4th (?) Amendment to hold the phone up to his face for a forced facial recognition log-in? That might wipe the shit-eating grin off his mug.

        • higgs boson says:

          Scott Perry might (barely) come out ahead in a beauty contest, but I’m pretty sure the Alien will beat him handily in the Poise and Personality competitions.

        • Rayne says:

          Fingerprints which are a biometric are usable under the 4th and don’t violate the 5th. Ditto other biometrics.

          Consider this a reminder to never use biometrics for security, always a passcode of sufficient length and complexity.

        • noromo says:

          Geez, really, don’t use biometrics to secure your phone, as convenient as it is. Facial recognition is easier to spoof than fingerprints.

          Fingerprint sensors on phones capture only partial prints. In 2017, researchers at NYU created “MasterPrint” that unlocked 65% of smartphones.

          Of course, as someone said (was it here?), if someone’s willing to cut off your finger to access your phone, you’ve got bigger problems.

        • timbozone says:

          I am not a lawyer but my understanding is…

          Basically, is your fear of self-incrimination, if you were to reveal the password in this instance, rational or irrational? A court will determine where your belief realistically falls in that regard if you continue to refuse to comply with an adjudged lawful subpoena or warrant. Once a court or final appeals panel has ruled that you must comply, you might very well be held in contempt for failing to comply with the court’s order(s).

          Note also that criminal contempt and civil contempt are two different beasts. I forget the ins and outs of it but you can look them up online.

        • Bill_01FEB2023_0950h says:

          In my state at least providing a password can be compelled.

          [Welcome back to emptywheel. THIRD REQUEST:Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. We also have multiple community members named “Bill” or “Will.” Because differentiation is absolutely necessary so as not to confuse your comment with any left by other Bill/Will, your username will be changed on this comment to indicate date/time it was published. /~Rayne]

        • Elvishaslefthebuilding says:

          Take a look at the State v. Robert Andrews -

          New Jersey Supreme Court ruled that a defendant could be compelled to reveal his passcode as it did not amount to testimony. I haven’t done any research to see if this is still good law, but I do know that the US Supreme Court hasn’t yet addressed this issue.

        • bmaz says:

          Thank you. But until told otherwise by the Supremes, I’ll stay where I am at. And would never have a client affirmatively do so.

        • Rugger_9 says:

          I’m with bmaz on this one, make ’em get warrants. However, in the decision cited, did the NJ SC say how releasing a passcode or password would not open the door to de facto testimony? I might be missing something, but isn’t that the whole point of password protection, to keep information secret including one’s own opinions?

        • Rugger_9 says:

          The other thing to consider is the ‘in plain view’ doctrine for searches (which IIRC has passed SCOTUS scrutiny), where a properly executed warrant for one thing can use other stuff in plain view against a defendant. It’s a favorite for traffic stop searches.

          Once someone has the phone and a password, everything is in plain view without leaving the room.

        • billtheXVIII says:

          State v Pittman Oregon Supreme Court 2021
          “we therefore conclude that, to obtain an order requiring a defendant to unlock a cell phone, the state must prove, beyond a reasonable doubt, that it already knows the information that that act would communicate.”

          [Thanks for updating your username to meet the 8 letter minimum. Please make sure you enter it as used here each time you comment. /~Rayne]

        • bmaz says:

          In addition to what Rayne said, this is your third sock puppet on people here.

          So, no breaks. Also, too, citing state based cases. Let’s talk when it is on the actual SCOTUS plate. I know people already doing that, and I can only hope it goes well.

        • timbozone says:

          I never argued that it couldn’t be compelled.

          I maintain that the federal courts, all the way up to the Supreme Court, have generally tended to favor the interpretation that you cannot be compelled to provide any testimony that a rational person would believe tends to incriminate one’s self. And under current court precedent, that includes not having to provide passwords to encrypted data if you have a rational belief that by providing that password you would be tending to incriminate yourself.

  3. harpie says:

    Is any part of the following conversation protected by the Speech and Debate clause?

    11:23 AM PERRY to MEADOWS: Did you call Jeff Clark?
    [time??] Just sent you an updated file
    [time??] Roger. Just sent you something on Signal

    7:24 PM PERRY to MEADOWS: Mark, just checking in as time continues to count down. 11 days to 1/6 and 25 days to inauguration. We gotta get going!

    7:55 PM PERRY to MEADOWS: Mark, you should call Jeff, I just got off the phone with him and he explained to me why the principal deputy won’t work especially with the FBI. They will view it as not having the authority to enforce what needs to be done.
    [time??] MEADOWS to PERRY: I got it. I think I understand. Let me work on the deputy position.

    • harpie says:

      I just realized I DO have some of those times:

      7:55 PM PERRY to MEADOWS: Mark, you should call Jeff, I just got off the phone with him and he explained to me why the principal deputy won’t work especially with the FBI. They will view it as not having the authority to enforce what needs to be done.
      8:00 PM MEADOWS to PERRY: I got it. I think I understand. Let me work on the deputy position.
      8:05 PM PERRY to MEADOWS: Roger. Just sent you something on Signal
      9:00 PM PERRY to MEADOWS: Just sent you an updated file

      • timbozone says:

        Yeah, it’s not looking like Perry trying to get Clark into the AG position has anything to do with Speech and Debate…and there he is sending encryped infos on Signal too… Hmm.

    • harpie says:

      On 12/22/20 PERRY facilitated CLARK’s meeting with TRUMP at the WH

      CLARK was violating the DOJ-White House contacts policy, and ROSEN, [his new boss after BARR left] only found out about this visit because on 12/24/20 TRUMP called him from MaraLago to say “make sure the Department is really looking into these things [election fraud conspiracy theories] that you may have missed” and asks if Rosen knew “a guy named Jeff Clark.”

      12/26/20 Rosen calls Clark to learn why President Trump mentioned him by name on the December 24 call. Clark admits that he met with Trump in the Oval Office.
      [I wonder where that fits in the above TL for that date.]

    • Ginevra diBenci says:

      harpie, you are asking what I foresee will be the right question. These guys have a limited playbook, and Speech and Debate would seem to offer those like Perry a first recourse. I really hope that (like Trump’s ploy with E. Jean Carroll) it doesn’t work. As EW points out, the taxpayers are not paying them to plot like they’re in a bad Oceans 11 movie.

    • harpie says:

      The next day:

      12/27/20 TRUMP [Still at M-L] twice calls ROSEN. During the second call, Rosen conferences in DONOGHUE, who takes extensive notes. Trump mentions efforts made by PERRY, JORDAN, MASTRIANO

      TRUMP: “people tell me Jeff [Bossert] CLARK is great, I should put him in,” referring to the acting head of the Justice Department’s civil division, who had also encouraged department officials to intervene in the election. People want me to replace D.O.J. leadership.” […]

      [From Donoghue’s notes:]

      P: Country is up in arms over the corruption
      [harpie: ^ That sounds like a warning to me]
      P: “Don’t expect you to do that, just say that the election was corrupt + leave the rest to me and the R. Congressmen.”

      • harpie says:

        12/26/20 TRUMP tweets: [I should have included this above]

        [8:14 AM] The ‘Justice’ Department and the FBI have done nothing about the 2020 Presidential Election Voter Fraud, the biggest SCAM in our nation’s history, despite overwhelming evidence. They should be ashamed. History will remember. Never give up. See everyone in D.C. on January 6th.

        12/27/20 TRUMP asks DONOGHUE for his cell phone number so he can direct people with information about election fraud claims to call him. Pennsylvania Representative PERRY then calls Donoghue at Trump’s behest to discuss a false claim that Pennsylvania had 205,000 more votes than voters.

        PERRY also tells DONOGHUE that Jeffrey CLARK is “the kind of guy who could really get in there and do something about this.”

        PERRY emails Donoghue five documents summarizing numerous false Pennsylvania election fraud claims.

        DONOGHUE forwards Representative Perry’s email to the U.S. Attorney for the Western District of Pennsylvania Scott BRADY “for whatever it may be worth.”
        BRADY subsequently responds that the claims “were not well founded.”

        • harpie says:

          That 12/26/20 8:14 AM TRUMP tweet [The ‘Justice’ Department and the FBI have done nothing […]] should be at the VERY top, JUST BEFORE
          11:23 AM PERRY to MEADOWS: Did you call Jeff Clark?

        • harpie says:

          HOW did CLARK become
          “the acting head of the Justice Department’s civil division”???

          Wikipedia: “Jeffrey Bossert Clark (born April 17, 1967)[2] is an American lawyer who was Assistant Attorney General for the Environment and Natural Resources Division from 2018 to 2021. In September 2020, he was also appointed acting head of the Civil Division.”

        • Ginevra diBenci says:

          My reflexive answer would be that Clark’s civil division appointment must have been another Bill Barr chess play on Trump’s behalf. That, however, raises the question of how Barr would have been aware of Clark’s proclivities. Even in September 2020, the civil division would not have been a central focus of Barr’s, would it?

        • Ginevra diBenci says:

          harpie, Thank you ever so much for linking to that 1992 William Safire article about Barr in the now-closed comments about the Barr/Durham debacle.

          You reminded me why I miss Safire. Safire reminded me in meticulous detail why I argued in 1991 that the “noble” Gulf war was a set-up, as well as just how practiced Barr is in the mendacious, duplicitous arts.

  4. a better mitch says:

    R judges and congress-people are going to do what they’re going to do, but Jeffries and any other D voting to shield Perry appear incompetent at best. I understand Congress wanting to guard it’s prerogatives, but Perry is likely guilty of several felonies. No I can’t quote chapter and verse of US Code violations, but many of you can. Speech and Debate was never intended to enable insurrection. Why would D members of Bipartisan Leg. Com. play along?

    • Peterr says:

      Two reasons leap to mind.

      1) The possible return of Trump to the WH in 2024, or a similarly unhinged republican. “When we defend Congress, we have defend ALL of Congress.”

      2) Setting up to absolutely slam Jim Jordan’s hypocritical demands for information on active DOJ investigations. “Separation of Powers works both ways. We can’t demand our prerogatives as Congress and then ignore those of the Executive branch.”

      Will either of these cause republicans to straighten up and fly right? No. But as has been said ever since there were mothers, children, and cliffs, “If all your friends jumped off a cliff, that doesn’t mean you should.”

    • bmaz says:

      ” Speech and Debate was never intended to enable insurrection.”

      But the Speech and Debate Clause was intended to prevent it being too cheap and easy to impugn unknown motives to members of Congress.

      • Rugger_9 says:

        I also wonder how Boebert’s texts regarding where the Speaker was moving during the insurrection would fit under the Speech and Debate Clause. Perry was by no means alone in his orchestrations on that day, and that’s even before looking at Tuberville and Mike Lee in the Senate.

  5. viget says:

    The supreme court *has* found limitations on the speech and debate clause.

    In Brewster, the Court found that S&D only applies to purely legislative topics, and not to political ones.

    So, the question may be whether S&D protects texts about the strategy taken during the vote certification, and what MoC might or might not do, which I guess one could argue is a “legislative duty”.

    However, texting on members’ whereabouts I think would not be protected.

    It is a nuanced question.

    • bmaz says:

      Who said the Speech and Debate Clause protection for members of Congress had no limitation?

      Rather than Brewster, I’d suggest a full plumbing of the William Jefferson case, and notably the appeal. Speech and Debate is far broader, at least in trial court charging and argument, than you infer.

      • Hope Ratner says:

        Yes, but didn’t the Supreme Court just recently allow the Lindsay Graham appearance before the Fulton County grand jury go forward, recognizing that his S and D only goes no further than discussions of official legislative duties as it pertains to being a senator?

        • timbozone says:

          Didn’t SCOTUS, even after affirming that Graham had to testify in the Fulton County grand jury appearance, enunciate the possibility of further appeal by Graham if his questioning by the Fulton County grand jury fell too close to the edge of S&D clause prohibitions?

    • Ginevra diBenci says:

      viget, The current congress does not seem eager to do much actual legislating, but when and if it does it will demonstrate that there is a significant overlap between activities “political” and “legislative.” This has often been true regardless of party.

      These are indeed nuanced issues.

      • viget says:

        I think this is especially true with regards to the J6 certification procedures, which while not related to law-making, is a statutorily required procedure of the Congress.

        I wonder if that’s the argument in play here. Since it’s sealed, hard to know.

        Interestingly enough DC circuit in Rayburn office building did outline procedures for properly searching electronic evidence, in that the member is empowered to assert privilege over potentially protected legislative material which the court reviews to determine if they agree. Anything non-privileged is turned over to the investigators, and the member retains the ability to exclude it later during trial.

        Even more interesting is that the 9th circuit completely slapped down DC circuit in their analysis in the Renzi case, which I think means this is ripe for cert by the Supremes.

        So this will likely go on a bit.

        Can a Supreme Court proceeding be entirely sealed????

        • Ginevra diBenci says:

          viget, you asked, “Can a Supreme Court proceeding be completely sealed?”

          Two words: Shadow Docket.

  6. Drew in Bronx says:

    The intervention of a bipartisan leadership group in the sealed proceeding about Perry’s phone gives the impression that the Democratic leadership has knuckled under and let the GOP have their way in advocating for Perry. That’s what the GOP & Perry want us to believe. It’s very important to note that there are MANY examples of the GOP (and their witless accomplices at many mainstream media outlets) creating false implications about something that is happening because the underlying texts and evidence are kept secret.

    Since the intervention is emerging from a bipartisan group (as opposed to say Jim Jordan’s House Judiciary Committee) the most likely basis for it is the defense of institutional prerogatives of the Congress, just as the Biden Justice Department defends the prerogatives of the Office of the Presidency even when the litigation is over stuff that Trump did.

    Obviously, the Congress has a strong interest in keeping their rights under the Speech and Debate Clause as robust as possible. But a consensus document of a bipartisan committee is more likely to seek to clarify under what circumstances and to what extent a Member can be investigated and charged for crimes. Ultimately, unless the panel at the DC Circuit is totally in the tank for Trump, the clarification could put the DOJ on a firmer footing in this, since missteps will be less likely and what is allowed to them will be clear when the case comes to trial. I actually doubt that a brief intervening in this isn’t likely in itself to delay things very much, even though Perry & his buddies would try every means do delay a final decision.

    • tinao says:

      Heh, my brother-in-law and I have a running bet who is more corrupt Florida law makers or Pennslytucky’s.

      • Ginevra diBenci says:

        Me too. I always look forward to seeing Eureka’s name in the comments, and have been missing one of the first here who made me feel at home.

    • -mamake- says:

      Ditto, tinao. Thanks for asking. I miss her voice & presence. IIRC she is from my neck of the woods, so also appreciated reading her local stories.

      To ew team, if you are in contact with Eureka, please convey that she is missed. I’m a low frequency commenter but read regularly. A handful of comments represent many more who may not have seen a clear space to inquire about a person who has been a reliable and regular presence here.

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