A federal appeals court ordered review of a lower court ruling granting the Department of Justice (DOJ) access to Republican Pennsylvania Rep. Scott Perry’s phone records Tuesday.
In December, District Judge Beryl Howell granted DOJ investigators on the probe into alleged efforts to overturn the 2020 election access to over 2,000 of Perry’s messages, despite his objections that doing so would violate the Constitution’s “speech or debate” protection for lawmakers. The appeals court vacated Howell’s decision in part Tuesday and sent the case back to the lower court for “the correct standard” to be applied to communications “regarding alleged election fraud during the period before Congress’s vote certifying the 2020 election.”
The court’s opinion referenced in the order remains sealed, leaving its extent and reasoning unclear.
Judge Neomi Rao, a Trump appointee, wrote the opinion of the court, with Judge Katsas, also a Trump appointee, filed a concurring opinion.
Rao and Katas suggested Howell’s decision improperly distinguished between formal investigations and informal fact-finding during oral arguments earlier in the year, according to The Washington Post. (RELATED: Court Document Reveals Jack Smith Obtained A Search Warrant For Donald Trump’s Twitter Account)
WASHINGTON, DC – AUGUST 23: U.S. Rep. Scott Perry (R-PA), joined by members of the House Freedom Caucus, speaks at a news conference on the infrastructure bill outside the Capitol Building on August 23, 2021 in Washington, DC. The group criticized the bill for being too expensive and for supporting special interests. (Photo by Kevin Dietsch/Getty Images)
Howell previously agreed 164 records involving communication with other Congress members and staff about core legislative activity were protected, though other messages she deemed “random musings with private individuals” or “political discussions” could not be shielded, per the ruling.
“Specifically, 2,055 of the 2,219 responsive records are not privileged under the Clause and thus must be disclosed to the government, with the remaining 161 records properly withheld in full and three records in part,” Howell ruled.
Perry and did not immediately respond to a request for comment, while the DOJ declined to comment.
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