Opinion If courts reject Perry’s defense, Trump and MAGA lawmakers should panic
Howell’s opinion, a model of clarity and sound reasoning, if eventually upheld, could have serious consequences for Trump and others now the subject of criminal investigation. (While it might also impact any speech or debate clause defense that former vice president Mike Pence raises, his case involves unique legal issues and different facts.) As such, Howell’s opinion deserves careful review.
“As part of a grand jury investigating potential federal criminal law violations stemming from efforts to overturn the 2020 presidential election, the government uncovered evidence of Rep. Perry using his personal cell phone to communicate with individuals allegedly engaged in those efforts over critical time periods at issue in the investigation,” Howell wrote.
Howell noted that “Rep. Perry contends that he is entitled to withhold as privileged under the Clause 2,219 responsive records spanning his communications not only with fellow congressional Members and staff, but also with private individuals and officials with no formal role or function in the United States Congress.” Such a claim, she found, distorts the speech or debate clause beyond all reason, effectively converting the clause into blanket immunity for practically anything a sitting congressman says or does. Instead, she found that only 164 records relating to an “integral part of the deliberative and ‘communicative processes by which Members participate in committee and House proceedings’” were privileged.
She stressed that “the Supreme Court has made clear that the Clause is no ‘get out of jail free’ card,” and held that the clause cannot be expanded to cover Perry’s claimed informal “investigation” in the 2020 election, and concluded that it certainly cannot cover illegal activities beyond his official duties or political activities. She found, “What is plain is that 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” results.
Nor, she wrote, does the clause prevent the government from obtaining hundreds of communications between Perry and other members (except those relating directly to his vote or to committee assignments) and between Perry and the executive branch. She held that those “conversations about press coverage and political messaging, his communications about fraud and security concerns in the 2020 election, and general newsletters he received from House GOP leadership” were political in nature, and hence, not privileged. Just as Sen. Lindsey O. Graham (R-S.C.) was directed by the 11th Circuit to testify to all matters outside the scope of the clause, so too prosecutors under Howell’s ruling would be able to access these records and demand Perry’s testimony about the same.
The most intriguing aspect of Howell’s ruling concerns more than 900 records of conversations with the executive branch. Howell wrote: “Given the Clause’s purpose to protect congressional Members from untoward interference from the Executive Branch with legislative matters, Rep. Perry’s reliance on the Clause to shield his multi-pronged push for Executive Branch officials to take more aggressive action is not only ironic but also must fail as beyond the scope of the Clause.” (Think of this as the child who kills his parents and throws himself upon the mercy of the court as an orphan.)
Such messages may substantiate Trump’s awareness that he had lost the election; Trump’s determination to pressure the vice president; Trump’s willingness to use the mob to retain power after final court decisions; and the Trump-John Eastman plot to come up with a slate of phony electors. In short, Perry’s testimony and phone records may be some of the most probative evidence we have seen.
Moreover, if special counsel Jack Smith does get these messages and access to Perry’s testimony, he may get new insight not only into the White House’s machinations but also into those of other members of Congress — something the Jan. 6 House select committee could not access.
All this should send chills down the spine of democracy defenders. Aside from offering tantalizing hints about evidence that could incriminate Trump and his inner circle, Howell’s opinion reminds us that constitutional rot could run deep in Republican ranks: A sitting congressman may have conspired with other members of Congress and with the White House to stage a coup.
If that doesn’t make your blood run cold, nothing will.
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