“[F]ederal agents should not be given carte blanche to root around in Rep. Perry’s phone data looking for evidence that they hope might further their investigation,” Perry’s attorneys John Rowley and John Irving wrote in the 16-page suit, which was filed last week in Washington D.C. federal court but not publicly docketed until late Tuesday.
The case has been assigned to Judge Jia Cobb, an appointee of President Joe Biden.
A similar process has been unfolding in the case of attorney John Eastman, a key architect of Trump’s 2020 election subversion. FBI agents, also operating on behalf of the inspector general, seized Eastman’s phone in June while he was in New Mexico. As with Perry, investigators agreed not to scour the phone’s contents until it obtained a second search warrant setting guardrails on the review.
Eastman quickly sued to force DOJ to return the phone, and he’s expected to appear at a hearing in federal court in New Mexico next month.
Perry indicated that the warrant to seize his cell phone was authorized by Magistrate Judge Susan Schwab in the Middle District of Pennsylvania’s federal court on Aug. 2, a week before agents approached him while he was vacationing with family in New Jersey and took custody of the phone.
Perry indicated that after his phone was seized, he and his attorney conferred with DOJ about an alternative solution to litigation. One framework proposed by the department would permit Perry’s attorneys and its investigators to jointly review Perry’s phone and hash out potential privilege issues together. But, according to Perry, DOJ demanded that he waive his immunity under the Constitution’s speech and debate clause as part of the process, which Perry says he declined.
Perry contends that the data on his phone includes material protected by attorney-client privilege, marital privilege and the constitutional provision that limits most legal action against members of Congress related to their official duties.