In battle over Scott Perry's phone data, media asks judge to make documents public

Aimee Ambrose
York Dispatch

The U.S. Justice Department wants to argue in secret why the FBI’s reasons for seizing incumbent Republican U.S. Rep. Scott Perry’s phone data should stay secret.

Local media hopes to pry those secrets into the open as part of an ongoing federal lawsuit.

Government lawyers asked a federal court in Harrisburg last week for permission to file their response to the suit under a seal. The York Dispatch, York Daily Record and PennLive stood up Monday and said no way.

“We’re frustrated but not surprised the government insists on litigating this case in secret,” said Grayson Clary, an attorney for the Reporters Committee for Freedom of the Press.

Rep. Scott Perry, R-Pa., speaks during a news conference with members of the House Freedom Caucus outside the U.S. Capitol on Feb. 28, 2022, in Washington, D.C. (Drew Angerer/Getty Images/TNS)

FBI agents seized Perry’s phone data under a warrant Aug. 9 as the York County Republican vacationed with his family in New Jersey.

The arguments for obtaining that warrant were made under seal. And the seizure came a day after agents searched former President Donald Trump’s Mar-a-Lago estate in Florida for classified documents.

The news outlets, through the Reporters Committee, then filed a lawsuit Sept. 29 to have judicial records in the Perry investigation unsealed, including the warrant, the warrant application, affidavits and other related documents.

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The arguments included concerns that searching a sitting congressman’s property could cross separation of powers lines, as well as potentially infringe on Fourth Amendment constitutional protections against unreasonable searches and seizures.

The Justice Department is working to respond to the allegations, and in the process, asked the court Oct. 20 for permission to file the response under a seal. The Reporters Committee opposed the request Monday with a brief asking for an unsealed or redacted version of the response to be kept public.

Among the Reporters Committee's arguments: Perry’s phone wasn’t taken in secret — he’s discussed the issue publicly, and it’s been covered as news. Attorneys for the newspapers also wouldn’t be able to appropriately respond to the government’s arguments if they’re sealed from view.

Perry’s congressional office did not return a message Monday for comment on the lawsuit for unsealing the warrant for his phone.

FILE - Rep. Scott Perry, R-Pa., takes a question from a reporter at a news conference held by the House Freedom Caucus on Capitol Hill in Washington, on Aug. 23, 2021. The committee investigating the Jan. 6 U.S. Capitol insurrection has requested an interview with Perry. The Republican lawmaker is the first sitting member of Congress the panel has requested to speak with.  (AP Photo/Amanda Andrade-Rhoades, File)

A federal appeals court recently ordered a district court to reconsider a decision to deny unsealing warrant documents related to a congressperson in a case involving the Los Angeles Times, the new brief pointed out.

The argument also cited how the government gave an “exceptionally public response” in a similar case in Florida to unseal warrants involving Trump.

“The suggestion that the government cannot say a single word in public in this case is unserious,” the new brief states.

Clary told The York Dispatch the federal government tends to take a stance of not confirming an investigation and staying mum, even in situations similar to Perry where a search and seizure is well known.

He believes courts have to consider information brought into the public domain, such as news reports, in addition to investigators’ arguments

“We’re hopeful the courts will recognize that, too,” he said.

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Or, as the brief states, “This court should reject the government’s effort to defend secrecy that does not exist.”

On top of this case, Perry filed an emergency lawsuit in August to get his phone data back from federal investigators and to reportedly block them from searching his phone.

He alleged, including to the Dispatch, that the seizure was part of a politically motivated attempt to undermine his reelection bid in November.

In that statement in August, he said the seizure wasn't "about January of 2021."

Perry’s been considered a key player in pushing false narratives about the 2020 presidential election and in the events of Jan. 6, 2021, when Trump supporters stormed the U.S. Capitol.

That same day, he voted against the certification of the 2020 presidential election results.

— Reach Aimee Ambrose at or on Twitter at @aimee_TYD.