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.
[snip]
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.
ArtI.S6.C1.1.3 Speech and Debate Privilege
https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/speech-and-debate-privilege
“except Treason, Felony and Breach of the Peace”
The Jan 6 activities seems to qualify as an exception but I’m not an originalist.
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.
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.
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.
Isn’t this considered a threat to National Security ?
Lol, everything is a “threat to national security”, can you be more specific?
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?
You never agree to give it to them. If they crack it, fine, whatever, but never affirmatively give it to them.
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?
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.
That grin and his photo on the emptywheel homepage make me think of this:
https://screenrant.com/alien-movie-cast-filming-production-updates-details/
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.
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.
Thanks, Rayne.
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.
True. More likely it seems to me is that someone just pilfers someone’s laptop.
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.
In my state at least providing a password can be compelled.
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Yeah? What state is that?
Can you provide a cite for the basis of said proclamation in your state?
Take a look at the State v. Robert Andrews -https://www.njcourts.gov/system/files/court-opinions/2020/a_72_18.pdf
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.
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.
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?
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.
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.”
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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.
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.
Is any part of the following conversation protected by the Speech and Debate clause?
12/26/20
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.
I just realized I DO have some of those times:
https://twitter.com/emptywheel/status/1540061849160400904
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
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.
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.]
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.
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
[From Donoghue’s notes:]
https://www.emptywheel.net/2021/08/04/leave-the-rest-to-me-and-the-r-congressmen-trumps-big-lie-and-the-actual-harm-of-january-6-obstruction
12/26/20 TRUMP tweets: [I should have included this above]
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.”
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?
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.”
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?
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.
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?
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.”
But the Speech and Debate Clause was intended to prevent it being too cheap and easy to impugn unknown motives to members of Congress.
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.
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.
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.
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?
No, SCOTUS simply denied a petition for stay.
Thanks.
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?
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.
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????
viget, you asked, “Can a Supreme Court proceeding be completely sealed?”
Two words: Shadow Docket.
“Hey now, baby
Get into my big black car
Hey now, baby
Get into my big black car
I want to just show you
What my politics are”
https://youtu.be/t25E9tDzLF4
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.
Heh, my brother-in-law and I have a running bet who is more corrupt Florida law makers or Pennslytucky’s.
Totally OT, hey bmaz did anyone find out what was the word on Eureka?
Yes, but not definitively.
Thank you, bmaz.
I’m missing her voice. She is maintaining I hope with good care or hopefully, just offline for a while.
Me, too. [Love to Eureka! <3]
Second Harpie.
Me too. Thanks for bringing this up, tinao. I think of Eureka often.
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.
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.