Grand Juries & State Prosecutions
Perry Grand Jury Case
Major Issue: Whether Speech or Debate Clause protections prevent a search warrant from obtaining information from the personal cellphone of a member of Congress when part of a grand jury investigation into potential federal criminal law violations stemming from efforts to overturn the 2020 presidential election.
Case Status: Awaiting appeals court opinion.
Case Description: On Aug. 9, 2022, a federal magistrate approved a warrant to seize Rep. Scott Perry’s personal cell phone. The Federal Bureau of Investigation (FBI) subsequently seized the cellphone and, on Aug. 18, 2022, applied for a search warrant from the D.C. District Court to search the cellphone’s contents. The District Court approved the search warrant, finding probable cause that a crime was committed. On Aug. 23, 2022, the FBI extracted an image of the cellphone’s contents and returned the cellphone to Rep. Perry. Rep. Perry eventually asserted privilege over 2,219 cellphone records, citing the Constitution’s Speech or Debate Clause which states that “for any Speech or Debate in either House” members of Congress “shall not be questioned in any other Place.”
Procedural Posture: D.C. District Court Chief Judge Beryl Howell was assigned to the case. Because the dispute was part of an ongoing grand jury proceeding, the pleadings and court orders and opinions were sealed. On Dec. 28, 2022, after an in camera review, the District Court determined that the Speech or Debate Clause did not apply to 2,055 of the 2,219 cellphone records and ordered them produced to the Department of Justice (DOJ). The court also denied Rep. Perry’s request to stay the order. Rep. Perry appealed. On Jan. 5, 2023, the D.C. Circuit Court of Appeals stayed the District Court’s order pending appeal. On Jan. 27, 2023, the House of Representatives filed a motion to intervene in the case. On Feb. 23, 2023, the Appeals Court heard oral argument. On Sept. 13, 2023, the Appeals Court issued an opinion remanding the case to the district court to apply a broader Speech or Debate Clause privilege to certain cell phone communications which the district court had earlier found to be unprotected by privilege.
On Aug. 9, 2022, federal Magistrate Judge Susan E. Schwab, from the Middle District of Pennsylvania where Rep. Perry lived, approved a warrant to seize his personal cell phone. The FBI subsequently seized the cellphone and, on Aug. 18, 2022, applied for a search warrant from the D.C. District Court to search the cellphone’s contents. D.C. District Court Chief Judge Beryl Howell, who handled grand jury issues for the court, was assigned to Case No. 22-sc-2144. On Aug. 18, 2022, the District Court approved the search warrant, finding probable cause that a crime was committed.
On Aug. 23, 2022, the FBI extracted an image of the cellphone’s contents and returned the cellphone to Rep. Perry. Rep. Perry filed a lawsuit challenging DOJ’s authority to view the cellphone’s contents, but later voluntarily withdrew that suit on Oct. 22, 2022. In the meantime, on Oct. 6, 2022, Rep. Perry indicated to the court his intent to assert privilege over the cellphone records under the Speech or Debate Clause and petitioned for more time to review them. On Oct. 18, 2022, the District Court required him to provide a privilege log for the records already reviewed and established a timetable to complete review of the cellphone records. Rep. Perry eventually asserted privilege over 2,219 cellphone records, citing the Speech or Debate Clause. On Dec. 28, 2022, after an in camera review, the District Court determined that the Speech or Debate Clause did not apply to 2,055 of the 2,219 cellphone records and ordered them to be produced to DOJ. On Jan. 4, 2023, the court denied Rep. Perry’s motion to stay the order. On Jan. 5, 2023, Rep. Perry appealed to the D.C. Circuit Court of Appeals which stayed the District Court order pending appeal. On Feb. 24, 2023, in response to media requests, the District Court ordered that certain prior court orders and opinions in the case be unsealed and made available to the public.
- District Court opinion ruling Rep. Perry bears the burden of proof that Speech or Debate Clause protections apply to his cellphone records (11-4-2022)(13 pages)
- District Court order unsealing a June 27 order allowing DOJ access to certain Perry emails (12-15-2022)(28 pages)
- District Court opinion denying Speech or Debate Clause protection for 2,055 of 2,219 cellphone records (12-28-2022)(51 pages)
- District Court opinion denying Perry motion to stay the order to produce the records to DOJ (1-4-2023)(12 pages)
- District Court order unsealing certain earlier court orders and opinions (2-24-2023)(5 pages)
On Jan. 5, 2023, Rep. Scott Perry filed an appeal with the D.C. Circuit Court of Appeals. A 3-judge panel, with Judges Henderson, Katsas, and Rao, was assigned to Case No. 23-3001. On Jan. 5, 2023, the panel stayed pending appeal the District Court’s order to produce the cellphone records to DOJ. On Jan. 27, 2023, the House of Representatives filed a motion to intervene in the case. On Feb. 16, 2023, the Appeals Court issued a per curiam order identifying three issues related to the case. All other pleadings in the appeals court remain sealed as they are part of an ongoing grand jury proceeding. On Feb. 23, 2023, the Appeals Court heard oral argument.
- Appeals Court per curiam order identifying three issues and scheduling oral argument (2-16-2023)(1 page)
- Lawfare summary of oral argument before the D.C. Circuit (2-27-2023)(8 pages)
- Appeals Court opinion remanding case to District Court to apply a broader Speech or Debate Clause privilege to certain cell phone communications (9-13-2023)(34 pages)
No proceedings to date.
