On Thursday, the DC Circuit Court of Appeals held a hearing on whether Rep. Scott Perry (R-Penn.) is protected by the Speech or Debate Clause from the Jan. 6 criminal investigation. Perry played an outsized role in the attempted interference in the 2020 presidential election and the court must decide whether criminal investigators can gain access to data on Perry’s cell phone. A DC Circuit case – the Rayburn House decision – makes clear that there is indeed a mechanism for conducting a criminal investigation into a representative’s activities. It also teaches that there is a lawful way to capture electronic evidence that is not covered by Speech or Debate protections and segregate it from what may be protected. In this article, we explain the law and how it should and will apply, including in light of the argument at Thursday’s hearing. We also discuss the possible en banc and Supreme Court review that could (and likely will) follow.

We begin with a discussion of who Scott Perry is and his role in the effort to overturn the election because the legal analysis turns on those facts and because it illuminates the larger stakes here. They are momentous.

I. Background on Rep. Scott Perry and the Assault on the 2020 Election

Perry’s interference in the 2020 presidential election is well documented – including in media reporting, a Senate Judiciary Committee report in October 2021, and the Jan. 6 Select Committee’s final report. Perry has been exposed as a “key congressional” ally of President Donald Trump in his effort to steal the presidential election and subvert our nation’s democratic process, and as the “chief conduit for the House GOP Conference to the White House.”

Perry’s involvement in Trump’s effort to overturn the election was extensive. He was “involved in early post-election messaging strategy” and an “early supporter” of the “Stop the Steal” campaign. The Congressman also “often teamed up” with Rep. Jim Jordan to spread lies about the election, both speaking at a “Stop the Steal” rally outside the Pennsylvania State capitol in Harrisburg, on Nov. 5, 2020, just days after the November election. On Nov. 10, Perry texted Meadows with advice from a “cyber forensic team” he was in touch with after the 2020 election. The message included a link to a conspiracy theory about the vote count in Pennsylvania posted by the far-right newspaper Epoch Times. It was one of many text messages that would follow.

He was involved in “discussions with White House officials about Vice President Pence’s role on January 6th as early as November 2020,” according to the Select Committee’s final report.

Perry also joined 26 other Republican Congressmen in co-signing a Dec. 9 letter requesting that Trump “direct Attorney General Barr to appoint a Special Counsel to investigate irregularities in the 2020 election.” The letter came more than one week after Barr had already told the press that there was zero evidence of significant fraud which could affect the outcome of the election. And Perry also supported Texas’s fatally flawed lawsuit against Pennsylvania, his own home state, and three other states. He also on Dec. 21, along with 10 other House Republicans, met with Trump at the White House to discuss their plan to object to the certification of the electoral college vote on Jan. 6. In the early hours on Jan. 6, Perry spearheaded Republicans’ objection to certifying the results in Pennsylvania, and he persists in making clear his skepticism in the 2020 election results.

Despite Perry’s trite public “condemnation” on Jan. 9, 2021 of the “unacceptable and criminal” behavior of those that attacked the Capitol building, he had initially advocated to Meadows that Trump speak at the Capitol during the joint session. He also joined a call on Jan. 2, where Rep. Jim Jordan (R-Ohio), Trump, and others discussed taking to social media to encourage Trump supporters to march to the Capitol on Jan. 6.

But “perhaps most pivotally,” as the Jan. 6 Select Committee noted, was Perry’s role in the plan to supplant the acting Attorney General with Trump loyalist Jeffrey Clark, in an effort to enact the “fake electors” plan. Perry introduced Clark to Trump, and together they had a shared goal: “to enlist Clark to reverse the Department of Justice’s findings regarding the election and help overturn the election outcome” (Jan. 6th final report). Evidence by the Senate Judiciary Committee and the January 6th Select Committee both show that following Perry introducing Clark to Trump, Perry sent several text messages to Meadows between Dec. 26, 2020, and Jan. 2, 2021, pressing that the DOJ official be speedily promoted to the very top of the Department to effectively carry out the plan. “Mark, you should call Jeff. I just got off the phone with him and he explained to me why the principal deputy won’t work, especially with the FBI. They will view it as [sic] not having the authority to enforce what needs to be done,” Perry wrote in a text to Meadows on Dec. 26.

Perry himself called Acting Deputy Attorney General Donoghue on Dec. 27. “Perry explained that President Trump asked him to call and that he, Representative Perry, did not think the DOJ had been doing its job on the election,” the final report states, relying on Donoghue’s testimony. Perry also spoke highly of Clark on the call, saying that he believed Clark “‘would do something about this,’” Donaghue testified. Perry also raised other unrelated qualms he had with the DOJ and argued that the “FBI doesn’t always do the right thing in all instances.”

That evening, Perry emailed Donoghue “a set of documents” which alleged significant voting fraud in Pennsylvania.  One document claimed that election authorities had counted 205,000 more votes than had been cast, a claim which Perry also shared on Twitter the following day. President Trump consistently asserted the same. But the claim was false; a simple delay in Pennsylvania’s election site to update explained the discrepancy in reported public votes cast.

Perry’s plan appeared to be succeeding, as Trump offered Clark the position of Acting Attorney General, Clark said he would accept, and the White House call logs referred to Clark under that new title. Perry and Trump’s plan failed only after DOJ officials warned Trump in the Oval Office on Jan. 3 of mass resignations if Clark were to replace Rosen.

II. Procedural History of the Criminal Investigation and the Perry Litigation

Perry has been of interest to Justice Department prosecutors since at least June 2022 for his involvement in efforts to overturn the 2020 election. That is when District Court Chief Judge Beryl Howell issued an order giving prosecutors access to 37 emails between Perry and Jeffrey Clark, Ken Klukowski, and John Eastman.

On Aug. 9, 2022, FBI agents executed a court-authorized warrant to seize Congressman Perry’s personal cell phone while he was on vacation with his family in New Jersey. Soon after the seizure, Perry shared news of it with Fox News in an official statement. “And this is my personal cell phone, Brian,” Perry said during his first exclusive interview on the matter with Fox News. “I have a [sic] official cell phone. They don’t want that. So, this is my personal cell phone that I talk to my wife on, that I talk to my children on, my constituents. None of the government’s business.”

As media outlets reported at the time, the seizure was the third major step “taken [in recent months] in connection with an escalating federal investigation into efforts by several close allies of former President Donald J. Trump to overturn the 2020 election[.]” In addition to seizing Perry’s phone, agents had in June seized the phones and other electronic devices of Clark and Eastman, all originally in relation to activities of the Justice Department’s Office of the Inspector General, which was at the time “taking the lead on the election subversion investigation.”

The warrant was issued on Aug. 2 by Magistrate Judge Susan E. Schwab of the U.S. District Court for the Middle District of Pennsylvania. After seizing the congressman’s phone, its data was copied, and the phone was given back the same day. DOJ then asked the U.S. District Court for the District of Columbia for “a necessary second level of judicial permission to begin combing through the records.” Perry immediately filed a lawsuit following the seizure, raising Speech or Debate Clause claims. Following Perry’s lawsuit, the dispute went under seal, with Perry’s legal team and DOJ investigators appearing in mid-October before Judge Howell during a secret hearing. Perry then dropped his suit in October, leaving unknown the status of the behind-closed-doors case.

On Dec. 28, 2022, Judge Howell ruled in favor of the DOJ’s request to start the second stage of its review, allowing prosecutors to comb through the electronic information on Perry’s phone. Last month, however, a three-judge appeals court panel in DC – two Trump appointees, Judges Gregory Katsas and Neomi Rao, and H.W. Bush appointee Judge Karen Henderson – put a temporary stay on Howell’s ruling. The Reporters Committee for Freedom of the Press then filed a motion to “unseal the appeals court’s order and all briefing in the case, including filings submitted by the government, Perry, and the U.S. House of Representatives.” Further, they requested oral arguments in the case be open to the press and public. On Feb. 16, 2023, the D.C. Circuit granted the latter request in part with a public hearing to be immediately followed by one closed to the public.

Notably, the House has made a move in the case, with the five-member “Bipartisan Legal Advisory Group,” – including House Minority Leader Hakeem Jeffries and Republican House Speaker Kevin McCarthy – voting unanimously to intervene in the case.

Thursday’s Hearings

During the public part, oral arguments were made on two issues relevant to the Speech or Debate Clause:

  1. Whether the Speech or Debate Clause of the Constitution protects informal legislative fact-finding by individual members of Congress in the absence of official authorization; and
  2. Whether the Speech or Debate Clause’s non-disclosure privilege extends to communications between members of Congress and either private parties or members of the Executive Branch.

We address these two questions specifically in our analysis below, with reference to the available facts, and taking account of what we learned at the argument. But first we offer some threshold analysis of Speech and Debate Clause law and precedent. Some areas are more settled than others, some issues the Supreme Court has never dealt with, and some matters the Circuits disagree on.

III. The General Constitutional Framework

The Constitution’s Speech or Debate Clause provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.” U.S. Const., art. I, § 6, cl. 1. As recognized in the Justice Department’s manual, the Clause’s “purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches.”

The privilege(s) offered by the Clause are relatively broad: it “protects ‘against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts’” and “precludes any showing of how [a legislator] acted, voted, or decided.” United States v. Helstoski, 442 U.S. 489, 500 (1979) (quoting United States v. Brewster, 408 U.S. 501, 525, 527 (1972)). The legislative process includes not only “words spoken in debate,” but also “[c]ommittee reports, resolutions, and the act of voting” and “things generally done” during a legislature’s session “by one of its members in relation to the business before it.” Gravel v. United States, 408 U.S. 606, 617 92 S. Ct. 2614 (1972).

The Clause can be best thought of as composing the general principle of immunity (from prosecution or suit), “complemented” and “effectuated” by two component privileges – evidentiary and testimonial – which Members may invoke to protect against the introduction of specific “legislative act” evidence. As such, a Member of Congress cannot be compelled to testify about matters covered by the privilege, nor have evidence of such acts used against them at least at trial and potentially during investigations (depending on which Circuit you ask).

Limitations to the Clause

“The scope of [any] privilege is limited by its underlying purpose.” Roviaro v. United States, 353 U.S. 53, 60 (1957). The “central importance” of the immunity created by the Speech or Debate Clause is to “prevent [] intrusion by [the] Executive and Judiciary into the legislative sphere.” Helstoski, 442 U.S. 477, 491. The privilege was “designed to preserve legislative independence, not supremacy.” Brewster, 408 U.S. at 508, and, as such, the Clause’s protections do not apply to “everything a Member of Congress may regularly do.” Doe v. McMillan, 412 U.S. 306, 311, 313 (1973).

Importantly, the Clause does not provide members of Congress with carte blanche to carry out any action in the name of official duty and escape complete scrutiny and accountability. As the Supreme Court has repeatedly stressed, the purpose of the Clause was not “to make Members of Congress super-citizens, immune from criminal responsibility,” Brewster, 408 U.S. at 516. nor to offer privileges to those that “violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. at 626. Essentially, as noted in a Congressional Research Service report on the Clause, it “does not immunize criminal conduct that is clearly no part of the ‘due functioning’ of the legislative process.” For example, the Clause has accordingly been expressly held not to protect Senators or Representatives against bribery charges. Johnson v. United States, 383 U.S. 169 (1964).

The privilege extends only to those acts that are an “integral part of the deliberative and communicative processes” through which members of Congress engage either in “the consideration and passage or rejection of proposed legislation” or “other matters which the Constitution places within the jurisdiction of either House.” Gravel, 408 U.S. at 625.

Is the Conduct a “Legislative Act”?

Often the key question in Speech or Debate Clause cases is whether the relevant conduct, or on which evidence or testimony is sought, properly constitutes a “legislative act.” Johnson, 383 U.S. at 185; Brewster, 408 U.S. at 512; Gravel, 408 U.S. at 625. See also, U.S. v. Renzi, 651 F.3d 1012, 1021.,

If legislative, the Member is – and rightly so – immune from any criminal or civil liability that may otherwise have attached to that act, and evidence of the act shall not be introduced in any subsequent trial, or testimony by the Member compelled, for example, by subpoena. McMillan, 412 U.S. at 312-13. However, acts determined by the court to be non-legislative will not receive the privilege.

The Supreme Court has consistently emphasized that “legislative acts are not all-encompassing.” Gravel at 625. The courts have never “treated the Clause as protecting all conduct relating to the legislative process.” Brewster, 408 U.S. at 515. The privilege is limited solely to legislative acts “generally done in a session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson, 103 U.S. 168, 204 (1881); see also Gravel 408 U.S. at 617-18. Merely performing certain duties in an official capacity as a Member of Congress does not ipso facto make those duties legislative. Fowler-Nash v. Dem. Caucus of Pa. House of Rep., 469 F.3d 328, 336-37 (3d Cir. 2006). In fact, Members “engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause.” Brewster, 408 U.S. at 512; accord Doe v. McMillan, 412 U.S. 306, 313 (1973). When Members of Congress engage in categories of conduct which are not legislative but instead, for example, political, such conduct does not enjoy privilege protection. Id. Thus, as the D.C. Circuit noted, the Clause “protects conduct that is integral to the legislative process, not a Member’s legislative goals.” Fields v. Off. of Eddie Bernice Johnson, 459 F.3d 1, 12 (D.C. Cir. 2006).

IV. Analysis of the Perry Case

As part of our analysis below, we now turn to the two issues argued before the court of appeals, and further address the law on matters which do not fall within the protection of the Speech or Debate Clause.

Unauthorized informal legislative fact-finding

In response to the first question, we take the view that informal legislative fact-finding in the absence of official authorization should not be protected under the Clause. In the alternative, even if privilege protection would extend to informal legislative fact-finding, much of Perry’s conduct (that prosecutors will likely be concerned with) could not properly be categorized as such. Instead, the evidence suggests that a lot of what Perry did to support Trump’s efforts could only properly be categorized as non-legislative acts.

The court in McSurely v. McClellan, 553 F.2d 1277 (D.C.Cir. 1976) (en banc) offers a helpful rebuttal to the contention that privilege should attach to informal legislative fact-finding by individual members of Congress in the absence of official authorization.

The court said that it had “no doubt that information gathering, whether by issuance of subpoenas or field work by a Senator or his staff, is essential to informed deliberation over proposed legislation.” Id, at 1286. However, it underlined that there are ““finite limits”” to the Clause, including the “requirement of congressional authorization” Id. at 1286-87, citing Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) (emphasis added).

In Thursday’s hearing, speaking of Supreme Court and DC Circuit case law, Judge Rao said, “There are no cases specifically about individual member fact-finding. … So actions that come from a committee or a subcommittee are really by definition legislative acts. They are acts of Congress or a subcomponent of Congress” (time stamp 11:15).

The Supreme Court went even further, adding even where there is “broad authorization” for a member to carry out an investigation, they are:

“not free to use every conceivable means to obtain investigatory materials, without fear of criminal prosecution or civil suit. The Court has taken “a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.” Gravel v. United States,408 U.S. at 620, 92 S.Ct. at 2625. In Gravel the Court held the Senator and his aide immune from questioning with respect to conduct that transpired at a committee hearing, but refused to extend immunity to grand jury questioning concerning third-party crime or criminal conduct by the Senator or his aide related to preparation for the hearing. Thus, the grand jury was permitted to “trac[e] the source of obviously highly classified documents that came into the Senator’s possession,” provided “no legislative act is implicated by the questions,” id. at 628, 92 S.Ct. at 2628, notwithstanding the fact that those documents were an integral part of the preparation for the committee proceeding that was held protected conduct.” Id. at 1287.

Perry may seek to argue that his communications with Trump officials, election officials, and Justice Department officials were all informal fact-finding with the view to informing his position when it came to passing his vote on Jan. 6. Admittedly, the act of voting is a legislative act and thus some fact-finding inquiries taken to better inform that voting decisions could be protected by the Clause.

However, as emphasized by the McSurely court, authorization to carry out investigative activity is required in order to have a chance of asserting privilege. As we know, Perry’s conduct was not authorized. Even if Perry somehow did have the authorization to carry out informal investigations, including field work, into his alleged concerns around the 2020 election result, the large majority of the communications Perry undertook fall squarely outside the ambit of Speech or Debate immunity. We address each of these below.

Perry’s actions, including those in late December and early January, cannot be properly characterized as informal fact-finding. His actions were not taken with the view to informing his voting decision on January 6th. He had already made up his mind months before. Perry did not seek to acquire knowledge through informal sources in order to discharge his constitutional duties. Quite the opposite. He sought to impress his idea of valid information, that the election result was wrong, on top DOJ officials in an effort to use their powers and influence, for example, to push state legislators into changing the election results. He did not seek to better inform his position, but instead influence the Executive branch to reverse its assessment that there was no evidence of substantial voter fraud.

Efforts to Influence Executive Conduct

Most importantly, the courts are in general agreement that communications by legislators that include efforts to influence the conduct of the Executive Branch will not be considered legislative acts. See Hutchinson, 443 U.S. at 121 n.10; United States v. Johnson, 383 U.S. 169, 172 (1966); Chastain v. Sundquist, 833 F.2d 311, 314-15 (D.C. Cir. 1987); Payne v. District of Columbia, 859 F. Supp. 2d 125, 134 (D.D.C. 2012); Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F. Supp. 2d 30, 54 (D.D.C. 2007). As the Supreme Court explained in Gravel, Members of Congress “may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.” 408 U.S. at 625. The Third Circuit in Menendez took a slightly different position, that “informal efforts to influence the Executive Branch are ambiguously legislative in nature and therefore may (or may not) be protected legislative acts depending on their content, purpose, and motive.” 831 F. 3d 155 at 168. See also McDade, 28 F.3d at 300. However, the court did agree with Gravel, and was clear that privilege would not be extended to “efforts to intervene in decisions pending before the Executive Branch that would mainly affect one particular party.” Id.

Public Statements

The Supreme Court in Hutchinson v. Proxmire held that public statements uttered outside the context of official congressional proceedings constitute another category of “non-legislative” activity, even when they are issued in furtherance of the “informing function” of Congress. 443 U.S. at 127-33.

Third-Party and Logistical Communications

A further category of communication not generally covered by privilege is third-party and logistical communications: For example, “communications between legislators and constituents, lobbyists, and interest groups are not entitled to protection under a legislative privilege.” Texas v. Holder, No. 12 Civ. 128, 2012 WL 13070060, at *2 (D.D.C. June 5, 2012) (Tatel, Collyer, Wilkins, JJ.); accord Bastien v. Off. of Senator Ben Nighthorse Campbell, 390 F.3d 1301, 1316 (10th Cir. 2004). Further, “meeting arrangements are only ‘casually or incidentally related to legislative affairs’ and are not part of the legislative process itself.” U.S. Merit Sys. Prot. Bd. v. McEntee, No. 07 Civ. 1936, 2007 WL 9780552, at *3 (D. Md. Dec. 13, 2007) (quoting Brewster, 408 U.S. at 528).

Irrespective of whether such conduct is criminal, it is, at minimum, “in no wise related to the due functioning of the legislative process.” Brewster, 408 U.S. 501, 525 (1972). Accordingly, when Members engage in the above categories of conduct, they do not enjoy the legislative privilege.

General “Non-Disclosure Privilege” of Documents and Other Records

There appears to be a fair degree of consensus that the Speech or Debate Clause provides three clear protections: immunity from direct liability for legislative activities; prohibition on the use of legislative-act evidence in litigation (evidentiary privilege); and protection of legislators from being compelled to respond to questioning regarding their legislative acts (testimonial or non-disclosure privilege). Renzi, 651 F.3d at 1035 n. 27; Howard v. Office of the Chief Administrative Officer of the United States House of Representatives, 720 F.3d 939, 946 (D.C. Cir. 2013).

However, as a Congressional Research Service report explains, there is “stark disagreement” between the Circuits as to whether the Clause provides for a general documentary “non-disclosure privilege” that applies irrespective of whether such documents are introduced into evidence. Essentially, the issue is whether a member of Congress is permitted to refuse to disclose any information on matters which fall within legislative activities including at the stage of a criminal investigation as well as at trial.

The D.C. Circuit has generally endorsed the additional privilege, viewing it as part of the testimonial component of the Clause, and found that it may apply in protecting Members from compelled compliance with administrative or civil subpoenas for legislative-act documents (see Comm. on Ways & Means, 161 F. Supp. 3d at 238-45; MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 857-59 (D.C. Cir. 1988); Brown Williamson Tobacco v. Williams, 62 F.3d 408, 420).

The D.C. Circuit Court in United States v. Rayburn House Office Building extended the reach of this privilege even further, finding that it also applied to the criminal context, specifically where the government executes a search warrant as part of a criminal investigation of a Member. “[T]here is no reason to believe that the bar [in Brown & Williamson] does not apply in the criminal as well as the civil context.” 97 F.3d at 656, 660.

The issue in Rayburn focused on whether the FBI executed a search warrant of the Congressman’s office in violation of the Clause. In short, the court found that the search did violate the Clause because the government “denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents.” Id. at 662. Despite the limited scope of the warrant (for non-legislative, unprotected documents only), the FBI’s initial review of the Member’s papers to distinguish between those protected and those not protected “must have resulted in the disclosure of legislative materials to agents of the executive.” Id. at 661. Thus the court found that the “compelled disclosure” was inconsistent with the protections of the Clause, specifically the testimonial privilege encompassing the nondisclosure right. Id. Unhelpfully, the court did not provide a clear acceptable procedure for avoiding a violation, except for stating that there appears to be “no reason why the Congressman’s privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement.” Id. at 662.

The position taken in Rayburn isn’t without its opposition. Notably, Judge Henderson—who sat on the Rayburn court and now sits on the panel deciding the Perry case, wrote a concurring opinion stating that the majority opinion “vastly over-read” the decision in Brown & Williamson. Henderson opined that with search warrants, unlike with subpoenas (like in the case of Brown & Williamson):

“[t]he property owner is not required to respond either orally or by physically producing the property, including records. Cf. Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913) (under Fifth Amendment ‘[a] party is privileged from producing the evidence, but not from its production’). The FBI agents’ execution of the warrant on Rep. Jefferson’s congressional office did not require the latter to do anything and accordingly falls far short of the question[ing]’ the court in Brown & Williamson found was required of a Member in response to a civil subpoena.”

As such, Henderson was of the view that Brown & Williamson’s non-disclosure rule “does not extend to criminal process.” Id. at 669-70.

The Third and Ninth Circuits have also broadly rejected the majority opinion in Rayburn House, holding instead that, at least in the criminal context, the Clause prohibits only the use of privileged documents as evidence in proceedings, not merely their disclosure to government investigators for review as part of an ongoing investigation. See Renzi, 651 F.3d at 1032-39; Fattah, 802 F.3d at 524-29; In re Grand Jury Investigation, 587 F.2d 589, 595-97 (3rd Cir. 1978).

As noted by the court in Rayburn, the matter has yet to be addressed by the Supreme Court.

Other Matters

Notably, the D.C. Circuit takes the view that “where it is not a Member who is subject to criminal proceedings, that the privilege might be less stringently applied when inconsistent with a sovereign interest.” Rayburn House, 497 F.3d at 663. So, for example, if DOJ is instead searching for evidence of crimes committed by third-parties such as Jeffrey Clark who is reportedly under investigation, a Member may have less success in claiming privilege.

According to Perry’s attorney, after receiving his phone back from agents, “The Justice Department informed us that Representative Perry is not a target of its investigation.”

During Thursday’s hearing, Judge Neomi Rao probed whether the non-disclosure immunity, in particular, could be waived like other immunities when communicating with individuals not covered by the privilege. The distinction discussed in Rayburn House may give even greater reason to finding such a waiver here.

Although the warrant in the Perry case is sealed, the warrant in the search of Clark’s home and seizure of his phone “ indicated that prosecutors are investigating Mr. Clark for charges that include conspiracy to obstruct the certification of the presidential election,” according to the New York Times.

V. Conclusion

To the extent the Justice Department seeks data from Rep. Perry’s phone concerning conduct that qualifies as non-legislative, the privilege does not apply. The Justice Department should have ample room to obtain the most relevant information from Rep. Perry’s phone. The Speech and Debate Clause has “finite limits” and the specific facts of the congressman’s communications fall outside those limits.

We thank Amalia Diamond, Simone Rothstein, Sasha Matsuki, Natalie Fulton, and Michael Nevett for assisting with research, fact-checking and proofreading.

Photo credit: U.S. Rep. Scott Perry (R-PA) walks back to the House Chamber during the third day of elections for Speaker of the House at the U.S. Capitol Building on Jan. 05, 2023 (Nathan Howard/Getty Images)