Months before Jack Smith subpoenaed the toll records of scores of Republican senators, a Chief Judge of the D.C. District Court rejected the Special Counsel Office’s attempt to sidestep the Speech or Debate Clause in another case involving a congressman. That detail and more revealed in internal documents from the special counsel’s team obtained exclusively by The Federalist, expose the depth of disregard Smith held for constitutional separation of powers.
Sen. Chuck Grassley, R-Iowa, has authorized for public release another batch of documents related to Special Counsel Smith’s targeting of President Trump. This cache consists of some 50 pages of internal communications the Iowa senator obtained pursuant to his oversight role as Chair of the Senate Judiciary Committee, including two memoranda detailing the limits the D.C. Circuit’s decision in United States v. Rayburn House Off. Bldg., placed on the seizure of Congressional records — constitutional limits Special Counsel Smith would later disregard.
A three-page, single-spaced memorandum drafted by Assistant Special Counsel John Pellettieri, addressed to Jack Smith and dated January 8, 2023, opened by stating the memorandum sought to summarize “Speech or Debate litigation before Chief Judge Beryll Howell,” pertaining to searches regarding Representative Scott Perry. The memorandum then noted that “[t]he logistical and legal difficulties regarding execution of these warrants arises from questions about the application of the D.C. Circuit’s decision in United States v. Rayburn House.”
Over the next page, Pellettieri explained that the Rayburn case involved a warrant to search the congressional offices of Representative William J. Jefferson, and had established “‘special procedures’ that contemplated the use of a ‘filter team,’” to “determine whether any seized materials were privileged under the Speech or Debate Clause.” On appeal, the D.C. Circuit rejected the DOJ’s search protocol, and held that “permit[ing] the government to review privileged materials without affording the member an opportunity to assert privilege before compelled disclosure to the Executive Branch violated the Speech or Debate Clause.”
Pellettieri unabashedly declared: “The Rayburn decision is erroneous and highly problematic for obvious reasons.” He added that “[t]here is broad and narrow language in Raburn that make it difficult to determine the scope and reach of the opinion, as well as what exactly it requires.”
As the memorandum would then explain, prosecutors had pushed a narrow reading of Rayburn in its subpoenaing of Representative Perry’s records. Nonetheless, “[o]ut of an abundance of caution given questions about the scope of Rayburn,” the memorandum explained, that prosecutors included with the warrant application an attachment stating it would adopt “Rayburn-compliant protocols,” namely giving Rep. Perry “an opportunity to assert the Speech or Debate privilege over records in the extraction,” from his cell phone.
“We argued before Chief Judge Howell,” the memorandum continued, “that this protocol was not required by Rayburn” because the phone seized was Rep. Perry’s personal cell phone, but asked the court to apply the review process to avoid delaying the case. “Chief Judge Howell determined that it was prudent to conclude that Rayburn applied to Rep. Perry’s phone given broad language in the Rayburn opinion,” Assistant Special Counsel Pellettieri explained. In applying that procedure, Rep. Perry asserted privilege over some 2,000 emails and text messages, and the Court concluded 164 records were privileged. The D.C. Circuit Court would later reverse the lower court’s decision, holding that the Speech or Debate privilege was broader than that then-Chief Judge Howell had afforded Rep. Perry.
Significantly, the memorandum continued with a summary of comments Chief Judge Howell made concerning the scope of Rayburn and its application to two other warrants. Prosecutors had directed one warrant at Google to seize the contents of Rep. Perry’s Gmail account and had filed a second warrant application to seize from Apple the content of Perry’s iCloud account.
According to the materials released by Grassley, the special counsel’s office had filed a motion with the court asking permission to “search the Gmail and iCould (sic) accounts without any of the Rayburn-complaint protocols we had acquiesced to with respect to the cell phone.” Here, Pellettieri explained that prosecutors had “argued that even if Rayburn applied to the cell phone, it did not apply to records in the possession of a third party (Google or Apple) because, among other things, the warrant did not compel disclosure by Rep. Perry.”
The memorandum then recounted that Chief Judge Howell “was not comfortable” with their approach, and was “seeking some sort of middle ground that would respect Rayburn,” while limiting “the privilege review she (or other judges) might be required to conduct under a Rayburn-type protocol.”
According to the cache of documents authorized for release by Grassley, Ray Hulser had requested Pellettieri prepare that memorandum for the special counsel in advance of Smith’s planned meeting with Chief Judge Howell on January 10, 2023. In asking for the memorandum, Hulser wrote that they “hope[d]” Judge Howell “does not want to get into a legal discussion about [Speech or Debate] but Jack could use a one-pager that gives a very high-level summary of the issues we’re dealing with in the Perry litigation.”
After reviewing the draft memorandum, Hulser asked Pellettieri to cut it to “a single page with simple bullets, . . . e.g., Rayburn is a 2007 D.C. Circuit opinion that found a ‘non-disclosure’ protection in the Speech or Debate Clause, in order to protect against chilling Members from candid communications. No other circuits agrees, and two circuits expressly disagree.”
In other words, Hulser wanted Smith’s focus with Chief Judge Howell to be the fact that other circuits disagreed with Rayburn, even though as a district court judge in the District of Columbia, Howell was required to follow Rayburn.
However, from the summary provided, Judge Howell stuck to the Rayburn procedure — at least as to the records seized from his Perry’s cell phone. It is unclear what transpired during the January 10, 2023 meeting scheduled between Special Counsel Smith and Judge Howell, and whether the then-Chief Judge told Smith that his team would need to comply with Rayburn before reviewing any materials obtained from Google and Apple. In fact, it is unclear whether Google or Apple ever provided documents and/or data to the Special Counsel team. All we know from the memorandum is that the warrant to Google stated prosecutors “would wait to search the emails upon further order of the court.”
And the docket related to Perry remains sealed, other than a handful of orders Judge Howell unsealed related to the seizure of the Congressman’s cell phone. Accordingly, there is no public record of what Judge Howell ordered concerning the Special Counsel’s need to comply with Rayburn related to the Gmail and iCloud material.
This leads one to wonder whether the special counsel’s team decided against moving move forward with a search of Perry’s gmail and iCloud accounts because they did not want him (and others) to learn of those warrants — which he would have, had Judge Howell required Smith to follow the Rayburn protocol, at least for some of the records, as the Chief Judge indicated she intended to do.
Given that Smith’s team abandoned their efforts to obtain Sen. Ted Cruz’s toll records after AT&T raised Speech or Debate concerns over the special counsel’s subpoena targeting the Texas Senator’s cell phone, that possibility definitely tracks.
The fight over Rayburn’s scope reaches much beyond Perry, though: The memoranda released by Grassley reveal that Special Counsel Smith knew that the Chief Judge of the District Court had insisted on applying the Rayburn procedures and believed that decision applied even if prosecutors were seeking legislative materials from third parties — at least when the Court knew the warrants at issue targeted a Member of Congress.
These facts render Smith’s later decision to withhold from Judge Howell’s successor, Judge James Boasberg, the information that he was seeking nondisclosure orders for subpoenas targeting other members of Congress, even more nefarious.
Smith claims he made the decision to seek those toll records only after obtaining the concurrence of the Public Integrity Section, but all PIN did was concur that the litigation risk was low. And the just-released memoranda suggest the special counsel knew he should have consulted Judge Boasberg, just as the team had previously consulted Judge Howell. They didn’t and we now have further evidence why that was — because the special counsel knew the court would have required prosecutors to follow Rayburn, thereby revealing to Congress what they were up to.
