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 possible appeal of District Court ruling.

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 examining efforts to overturn the 2020 presidential election, 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 Dec. 19, 2023, the District Court issued an opinion reviewing the Perry emails and ordering 1,659 to be disclosed to DOJ, while finding 396 others to be privileged under the Speech or Debate Clause.

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. On Oct. 6, 2022, in accordance with procedures developed to review materials subpoenaed by the grand jury, Rep. Perry indicated to the court his intent to assert privilege over the cellphone records under the Speech or Debate Clause. 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. 

On Sept. 13, 2023, the Appeals Court remanded the matter back to the district court and instructed it to apply a broader Speech or Debate Clause privilege to the pending cell phone records. Because D.C. District Court Chief Judge Howell had stepped down and been replaced by Chief Judge James Boasberg, he was assigned to handle the Perry case after the remand. On Dec. 19, 2023, Chief Judge Boasberg issued an opinion determining that only 396 of the Perry cellphone records were protected by the Speech or Debate Clause and ordering 1,659 to be disclosed to DOJ.

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. 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.

No proceedings to date.