Probing the Limits of Speech or Debate Clause Privilege for Perry and Pence

On Thursday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in a potentiall important Speech or Debate Clause case concerning whether the Justice Department can obtain access to the contents of Congressman Scott Perry’s cell phone as part of its January 6 investigation. Most of the arguent was public and can be heard here. Judges Katsas and Rao actively probed both sides’ arguments so for those interested in these issues it is definitely worth a listen. (Judge Henderson is also on the panel, but asked few questions as she was participating remotely.)

On Friday, district court judge Beryl Howell released a redacted version of her decision rejecting Rep. Perry’s Speech or Debate Clause claim was released to the public. (It had previously been under seal.) After conducting in camera review of over 2,000 documents on Rep. Perry’s phone, Judge Howell concluded that most were not covered by the Speech or Debate Clause’s protection. Wrote Judge Howell:

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,

It was hard to get a read on how the D.C. Circuit will weigh Perry’s assertion of privilege. While their questions suggested some discomfort with the breadth of the Justice Department’s position, which Judge Howell largely adopted, they also seemed resistant to Rep. Perry’s equally broad claims pushing in the other direction and accepted that privilee could be waived by communications with those outside of the legislature.

At the same time the courts are considering Rep. Perry’s claims, debate is swirling over whether former Vice President Mike Pence can invoke the clause’s protections to refuse to testify before a grand jury about his activities on January 6. Pence wants to claim that the he can invoke this privilege because the Vice President serves as President of the Senate, and has a legislative-related role in counting electoral votes.