One of several secret court proceedings surrounding special counsel Jack Smith’s investigations into former President Donald Trump will crack open Thursday with an appellate court hearing examining how much the Constitution shields the communications of a Republican congressman who played a role in Trump’s 2020 election subversion gambits.
Many details of the case – a dispute over a Justice Department bid to examine the contents of Pennsylvania Rep. Scott Perry’s phone – remain shrouded in secrecy.
But a panel of the US DC Circuit Court of Appeals – including two Trump nominees – will give the public access to part of its hearing in the case as it considers questions about the scope of the Constitution’s Speech or Debate Clause, which protects legislators from certain law enforcement actions.
How the DC Circuit views the 17-word constitutional provision could have implications not just for how the Trump investigations proceed, but what sort of immunity legislators have in all sorts of court proceedings going forward – particularly if the conduct is not clearly part of their formal activities in Congress.
“We want members of Congress to be able to do their jobs without constantly being hauled into court,” said Elliot Williams, a former Justice Department official who also worked for the Senate Judiciary Committee. “But it defies logic and probably the Constitution for Congress to think it can wave a wand and call it everything it touches quote ‘informal legislative factfinding.’”
The court has not made public the arguments the Justice Department is putting forward for why it should be allowed to access Perry’s phone. The briefs that have been filed in the case, as well as the decision a lower court judge issued that the circuit court is now reviewing, remain under seal.
Perry was identified by the House…
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