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Special counsel Jack Smith was thwarted again in his attempt to implicate another Republican as he widens his investigation into the Jan. 6, 2021, riot at the U.S. Capitol Building after filing charges against former President Donald Trump in association with events that day.
The U.S. Court of Appeals for the District of Columbia Circuit ruled earlier this month that Smith cannot have access to the phone records of Rep. Scott Perry (R-Pa.) because allowing him to obtain that data amounts to a breach of the Republican lawmaker’s immunity under the Constitution’s “speech and debate” clause.
Smith was attempting to access Perry’s communications with colleagues and Trump administration officials, Politico reported. But the clause in question protects members of Congress from being dragged into legal proceedings while they are engaging in their elected 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’s ruling overturns a lower court decision by U.S. District Judge Beryl Howell, who mostly sided with the government’s request to gain access to Perry’s cellphone data.
The appeals court remanded the case back to Howell’s jurisdiction and instructed her to apply the new ruling to any future decision in the case, according to the outlets.
Late last week, Smith’s team again requested the federal judge overseeing Trump’s Jan. 6 case place a limited gag order be placed on the former president.
The prosecutors told a judge that after their initial request for a gag order three weeks ago, the former president has continued to wage “a sustained campaign of prejudicial public statements” against witnesses, prosecutors, and others, The New York Times reported.
U.S. District Judge Tanya S. Chutkan, who is overseeing Trump’s Jan. 6 case, has not ruled on the request from three weeks ago, but prosecutors added to that by mentioning statements the former president has made against people like former Vice President Mike Pence, a possible witness.
What prosecutors do not consider in their argument is that the former vice president is not only a potential witness but is also one of the former president’s opponents in the race for the Republican presidential nomination.
The Times reported:
The filing noted that Mr. Trump had lashed out at another witness in the case, “the former attorney general” — an apparent reference to William P. Barr — saying he had not done his job after the election “because he was afraid of being impeached.”
Moreover, prosecutors cited a menacing message that Mr. Trump posted on his social media site last week about Gen. Mark A. Milley, the outgoing chairman of the Joint Chiefs. After General Milley gave several interviews that were critical of Mr. Trump, the former president suggested that he had committed treason and that in the past he might have faced execution.
“No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed,” prosecutor Molly Gaston said. “This defendant should not be, either.”