The Lead

Federal judge orders Pa. U.S. Rep. Perry to disclose 1,700 messages to special counsel Jack Smith

By: - December 20, 2023 11:43 am

Rep. Scott Perry talking to reporters at the Capitol Sept. 19, 2023 (Jennifer Shutt/ States Newsroom)

Pennsylvania U.S. Rep. Scott Perry (R-10th District) must disclose nearly 1,700 records from his personal cell phone to the special counsel investigating illegal efforts to overturn the 2020 presidential election, a federal judge in Washington ruled on Tuesday.

The decision from U.S. District Judge James Boasberg follows an order from an appeals court to reexamine more than 2,000 files extracted from Perry’s phone after the FBI seized the device in August 2022. It slightly expands the number of privileged messages that Perry must reveal.

Perry had argued that the records are protected from disclosure under the U.S. Constitution’s speech and debate clause, which gives members of Congress a privilege against being forced to divulge discussions and other communication in the course of their work as lawmakers.

Special Counsel Jack Smith argued that discussions about the plot to keep former President Donald Trump in office after losing the election to President Joe Biden are not privileged.

Boasberg’s 12-page opinion largely tracks a Feb. 28 order by U.S. District Judge Beryl Howell granting Smith access to all but 164 of the 2,200 messages on Perry’s phone. 

The U.S. Court of Appeals for the District of Columbia partially affirmed Howell’s ruling in September but directed the lower court to take another look at which files were protected. 

Boasberg identified an additional 396 privileged messages between Perry and people outside the federal government, members of Congress and staff, and people within the Trump administration. Those dealt with legislative proceedings and votes.

The remaining messages — about non-legislative efforts to work with or influence members of the executive branch or state lawmakers to combat alleged election fraud, press coverage, procedures former Vice President Mike Pence should follow during the Electoral College vote count, and what happened during the Jan. 6, 2021 insurrection at the U.S. Capitol — are among the categories that are not protected, Boasberg wrote. 

A court document briefly unsealed by the appeals court last month shows that among the records are exchanges that Perry had with Pennsylvania state Reps. Mike Jones (R-York), Dawn Keefer (R-York) and Seth Grove (R-York), and state Sens. Cris Dush (R-Jefferson), Kristin Phillips-Hill (R-York), and Doug Mastriano (R-Franklin).

Each was among the 64 Pennsylvania lawmakers who signed a letter to the commonwealth’s congressional delegation, urging them to reject electors appointed by then-Gov. Tom Wolf.

Subjects of the exchanges included plans for a legislative audit of the election, including how to preserve and evaluate voting machine data and plans for the state Senate to request Wolf and Secretary of State Kathy Boockvar to audit the election results, the unsealed opinion says.

Perry did not immediately reply to a request for comment on Wednesday.

22-sc-2144 – Perry Opinion by PennCapitalStar

Update: This article was updated at 12:36 p.m. on Dec. 20 to add the document with the judge’s opinion.

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Peter Hall
Peter Hall

Peter Hall has been a journalist in Pennsylvania and New Jersey for more than 20 years, most recently covering criminal justice and legal affairs for The Morning Call in Allentown. His career at local newspapers and legal business publications has taken him from school board meetings to the Pennsylvania Supreme Court and many points of interest between. He earned a degree in journalism from Susquehanna University.

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