This seems to be the week in which Republicans file lawsuits to prevent agencies from examining seized evidence weeks after it’s been taken. First there was Donald Trump’s crack legal team throwing legal nonsense to a Florida judge over the documents the FBI carted away. Now Pennsylvania Rep. Scott Perry has followed his Mar-a-Lago idol by suing the Department of Justice to prevent them from accessing his phone.
His phone … that the FBI took possession of over two weeks ago.
Any secrets that might have been lurking in Perry’s open text messages might have already been read. But there is a possibility that the FBI is still waiting on two issues, one legal, and one technical. There was apparently an agreement about a “second search warrant” before going over the contents of the phone, and also because Perry was known to use an encrypted messaging app specifically for talking to former Trump Chief of Staff Mark Meadows. That could include texts elaborating on Perry’s claims that the election was manipulated by “Chinese hacking,” his citing of a video on the “Italian satellite” theory, and his multiple messages on how “the Brits” manipulated voting machines as part of an elaborate conspiracy covered up by the CIA.
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As Brandi Buchman reported, the FBI paid a call on Perry back on Aug. 9, after which the Pennsylvania Republican left the room without his cell phone. Perry was, and remains, one of Trump’s most radical supporters in the House, and was the man who introduced him to attorney Jeffrey Clark. Trump schemed to replace the acting attorney general with Clark and have his new attorney general issue a false statement claiming that there were serious concerns about voter fraud.
Previous to the taking of his phone, Perry was already the subject of a formal subpoena from the House special committee on Jan. 6, and this wasn’t his first encounter with the FBI. The agency searched the primary residence back in June.
But Perry’s phone was of special interest to everyone investigating the would-be coup, not just because of his numerous … eccentric … claims about the election, but because of Perry’s potential involvement in a scheme to bring slates of “false electors” to D.C. In his numerous text exchanges with Meadows, Perry made requests to move the conversation to an encrypted messaging app. As one does when conducting completely legitimate business as a representative of the people. That made getting physical control of Perry’s phone important.
According to Politico, the FBI agents who secured Perry’s phone earlier this month took it to the Department of Justice’s inspector general. In his lawsuit, Perry indicates that the Department of Justice promised not to access his phone without a “second search warrant” that would help to establish “guardrails” concerning just what data investigators could access. A similar process was established for Trump attorney John Eastman.
However, Perry backed out of negotiations over these guidelines at some point during the last two weeks. It’s unclear whether the Department of Justice’s response to this has been to just sit on their hands and wait for what came next.
Perry claims that the phone contains “material protected by attorney-client privilege, marital privilege and the constitutional provision that limits most legal action against members of Congress related to their official duties.” All of which seems like good reasons for excluding evidence from the record—so long as Perry understands that protections afforded to members of Congress don’t hold in the case of “treason, felony and breach of the peace,” all of which seem like a good description of events on Jan. 6.
However, just because material might be excluded from evidence doesn’t mean it doesn’t get viewed by investigators. After all, Perry could claim that the contents of an app included only his sweet-nothing exchanges with his spouse, but investigators would certainly want to see those messages before giving their agreement. That’s just one of the little problems that comes with using your phone as part of a conspiracy to overthrow the United States government.
Perry’s case is one where the right solution might actually involve the kind of “special master” Trump has been demanding to review the contents of his phone after it’s been read. That doesn’t fit for Trump, but it might work for Perry, though his suit doesn’t seem to suggest that as a solution.
But then, Perry and Trump share a lawyer. Considering the way other filings have gone this week, it’s easy to believe he might have gotten their cases confused.
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