A federal appeals court has thrown up a roadblock in front of special counsel Jack Smith as he continues his investigation into the Jan. 6, 2021, riot.
The U.S. Court of Appeals for the District of Columbia Circuit ruled on Wednesday that Smith could not get access to the cell phone records of Rep. Scott Perry (R-Pa.) because doing so would violate the lawmaker’s immunity under the Constitution’s “speech and debate” clause.
Smith was seeking Perry’s communications with colleagues and Executive Branch officials, POLITICO reported. But the clause in question protects lawmakers from being hit with legal proceedings while engaged in official duties.
“While elections are political events, a member’s deliberation about whether to certify a presidential election or how to assess information relevant to legislation about federal election procedures are textbook legislative acts,” U.S. District Judge Neomi Rao wrote in the opinion issued last week.
The decision marked the the first time an appeals court has held that lawmakers’ cellphones are subject to the same protections as their physical offices.
It also was the first significant legal setback for Smith in his bid to obtain evidence about involvement by allies of Donald Trump in the then-president’s alleged effort to overturn the 2020 election, Politico reported.
Rao, a Trump appointee, was joined by another Trump appointee, Judge Gregory Katsas, and by Judge Karen LeCraft Henderson, who was nominated by President George H.W. Bush.
The three-judge panel overturned a lower court ruling by U.S. District Judge Beryl Howell who mostly sided with the government’s request to access Perry’s cell phone info.
“We disagree with the district court’s holding that informal factfinding is never a legislative act. But we also reject Representative Perry’s proposition that informal factfinding is always a legislative act,” Rao wrote, according to POLITICO.
The higher court returned the case to Howell for her to apply the new rules to her original decision, the outlets reported.
Earlier this week, House Judiciary Committee Chairman Jim Jordan fired off a letter to Smith requesting documents and materials after being accused of using illicit pressure tactics in his investigation and indictments of former President Donald Trump.
The Ohio Republican demanded materials relating to claims that one of Smith’s senior prosecutors “allegedly improperly pressured Stanley Woodward, a lawyer representing a defendant indicted by you.”
The charges of impropriety come from a meeting between Jay Bratt and Woodward, the latter of whom represents Trump aide Walt Nauta in the Mar-a-Lago classified documents case. Bratt allegedly pressured Woodward “by implying that the Administration would look more favorably on Mr. Woodward’s candidacy for a judgeship if Mr. Woodward’s client cooperated with the Office of the Special Counsel,” the letter said, according to The Western Journal.
Jordan set a Sept. 21 deadline for Smith to comply with the chairman’s request.
“In November 2022, when your prosecutors were trying to secure the cooperation of Walt Nauta—who is alleged to have ‘move[d] boxes of documents’ at Mar-a-Lago—prosecutors, including Mr. Bratt, summoned Mr. Woodward to a meeting at the Department’s headquarters for ‘an urgent matter that they were reluctant to discuss over the phone,’” Jordan said in the letter, which was obtained by Just the News.
“When Mr. Woodward arrived, Mr. Bratt threatened him that Mr. Nauta should cooperate ‘because he had given potentially conflicting testimony that could result in a false statement.’ Mr. Bratt commented that he did not take Mr. Woodward as a ‘Trump guy’ and indicated that he was confident that Mr. Woodward ‘would do the right thing,’” the letter continued.
Then, Bratt allegedly “referenced Mr. Woodward’s pending application for a judgeship on the D.C. superior court, implying that the Biden Administration would perceive Mr. Woodward’s application more favorably if Mr. Nauta