Jack Smith, special counsel for former President Donald Trump, has been facing a challenging pretrial case in Washington, D.C., where a three-judge panel ruled that the special counsel could not access conversations on a phone from Pennsylvania Rep. Scott Perry. The ruling, which was revealed Wednesday, is the third strike in Smith’s cases against the former president and current front-runner for the 2024 GOP nomination.
The ruling from the D.C. Circuit Court of Appeals said that the special counsel’s office violated Pennsylvania Rep. Scott Perry’s rights under the Speech or Debate clause of the Constitution in its attempts to secure his smartphone communications with the Trump White House and other colleagues. The FBI had initially seized Perry’s phone in August 2022 after receiving a search warrant, but the Department of Justice was focused on Trump regarding the events surrounding the Capitol incursion on Jan. 6, 2021.
The FBI sought a second search warrant governing its ability to review Perry’s communications with other members of Congress, the executive branch, and others related to the 2020 election. A lower court ruling by U.S. District Judge Beryl Howell largely sided with the Justice Department’s effort to access Perry’s phone, with Howell arguing that Perry’s “informal” fact-finding about the results of the 2020 election was not protected by the Speech and Debate clause.
The decision was described as a setback for Smith and comes on top of more than a year of delay that investigators have encountered in seeking Perry’s records. It could also have significant impact any time the Justice Department seeks to investigate the actions of members of Congress. It is unclear whether Smith will appeal the decision to the full bench of the D.C. Circuit or to the Supreme Court.
The special counsel’s office is experiencing what could be charitably termed a late-summer dry spell, as Judge Aileen Cannon, the Florida judge overseeing the Trump confidential information case, struck down two of Smith’s filings and demanded he explain the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.