A federal judge opened the door for FBI bureaucrats under Attorney General Merrick Garland to comb through the protected communications of a sitting member of Congress as part of a politicized investigation.
On Friday, U.S. District Court Chief Judge Beryl Howell unsealed a Dec. 28 decision, giving the go-ahead for the FBI to review more than 2,000 messages stored on the cell phone of Rep. Scott Perry, R-Pa. The device was confiscated as part of the FBI’s partisan investigation into the 2020 election last summer while the conservative chairman of the House Freedom Caucus was traveling with his family.
Perry, a six-term lawmaker who voted to delay President Joe Biden’s electoral certification in 2021, claimed his phone records are protected under the Constitution’s speech and debate clause, which gives lawmakers immunity from executive intimidation by politicized investigations. Perry argued his records were created by routine work of the legislative process to ensure election integrity related to the 2020 presidential contest. Judge Howell, who was first appointed to the federal bench by President Barack Obama in 2010, however, rejected Perry’s claim as “astonishing.”
“What is plain is the clause does not shield Rep. Perry’s random musings with private individuals touting an expertise in cybersecurity or political discussions with attorneys from a presidential campaign, or with state legislators concerning hearings before them about possible local election fraud or actions they could take to challenge election results in Pennsylvania,” Howell, who was also the supervising judge for the grand jury in the Mueller investigation, wrote in December.
Despite Howell’s ruling being handed down two months ago, Perry’s messages remained concealed from federal investigators. A three-judge panel on the D.C. Circuit Court agreed to stay Howell’s decision in January. The court heard the case last week, holding a public session on Thursday, one day before Howell unsealed her December ruling.
Perry’s office did not respond to The Federalist’s request for an interview.
Perry was one of four members subpoenaed by the House Select Committee on Jan. 6 last year. The others include now-House Speaker Kevin McCarthy, Ohio Rep. Jim Jordan, and Arizona Rep. Andy Biggs. None complied with the panel’s requests.
At the conclusion of the probe on the eve of the Republican majority taking over the lower chamber, Rep. Jamie Raskin, D-Md., announced that the select panel referred their GOP colleagues to the Justice Department for criminal prosecution.
“An insurrection is a rebellion against the authority of the United States. … [The Constitution] uses participation in insurrection by office-holders as automatic grounds for disqualification from ever holding public office again,” Raskin said, revealing the true purpose of the investigation since the start.
While the Select Committee on Jan. 6 has been disbanded, the FBI is moving forward with its own investigation, with U.S. Attorney Jack Smith as special counsel. Perry’s communications with the White House and Justice Department have become a focal point in the probe. Only Republicans, however, have shown any outrage at the FBI prosecuting a sitting member of Congress over routine legislative procedures. The effort is merely the latest in a decades-long record of agency malfeasance wherein deep-state actors effectively weaponize the executive branch to pursue their political opponents.
The FBI triggered a bipartisan controversy 17 years ago when federal agents searched the offices of Rep. William Jefferson, D-La.
In 2006, then-House Minority Leader Nancy Pelosi released a joint statement with Republican Speaker Dennis Hastert demanding the FBI return all documents “unconstitutionally seized” from Jefferson’s office. At the time, Jefferson was facing allegations of bribery and refused Pelosi’s request that he resign his seat on the powerful Ways and Means Committee. The Louisiana lawmaker refused but lost his seat on the committee once Pelosi was elected speaker. Jefferson continued in the lower chamber until he lost re-election in 2008 under federal indictment. In 2009, Jefferson was found guilty of 11 out of 16 counts of corruption. Ten of the 11 counts were upheld by an appeals court in 2012, and Jefferson ultimately spent five and a half years in prison.
The FBI’s search of Jefferson’s House offices, however, sparked outrage in the capital. In 2007, the U.S. Court of Appeals for the District of Columbia Circuit ruled the FBI raid was unconstitutional.