In re Sealed Case

80 F.4th 355

IN RE: SEALED CASE

No. 23-3001

United States Court of Appeals, District of Columbia Circuit

Argued February 23, 2023

Reissued September 13, 2023

Decided September 5, 2023

Appeal from the United States District Court for the District of Columbia (No. 1:22-sc-02144)

John P. Rowley, III argued the cause for appellant. With him on the briefs were John S. Irving, Stan M. Brand, and Stanley E. Woodward, Jr.

John M. Pellettieri, Assistant Special Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were J.P. Cooney, Deputy Special Counsel, and Raymond N. Hulser, Counselor to the Special Counsel.

Before: Henderson, Katsas, and Rao, Circuit Judges.

Concurring opinion filed by Circuit Judge Katsas.

Rao, Circuit Judge:

This case concerns the application of the Speech or Debate Clause privilege to the contents of Representative Scott Perry's cell phone, which was seized by the Federal Bureau of Investigation pursuant to a warrant. In a district court motion, Representative Perry argued the Clause bars the government from reviewing many of the messages stored on the phone. As to communications with Executive Branch officials and parties outside of Congress, Representative Perry argues that his messages are necessarily privileged because they constitute "informal factfinding"—a capacious category he asserts is always privileged and includes a Member's attempts to obtain information related to topics of upcoming votes without express House authorization.

We disagree. Because at least some informal factfinding is unprotected under our caselaw, Representative Perry's categorical rule fails. Under Supreme Court and circuit precedent, the proper inquiry is fact-specific and considers whether the act is "legislative," i.e., "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

Some acts of informal factfinding, however, might satisfy the Gravel test, and so we reject the district court's categorical holding that such acts are never legislative acts subject to the privilege. With respect to Representative Perry's communications with Executive Branch officials and others outside of Congress, we remand for the district court to apply the Gravel standard on a communication-by-communication basis.

As to Representative Perry's communications with Members of Congress and congressional staff, we affirm in large measure. The district court, however, incorrectly withheld the privilege from communications between Representative Perry and other Members about the 2020 election certification vote and a vote on proposed election reform legislation. These are quintessential legislative acts entitled to the privilege, and we vacate the district court's judgment with respect to those communications and remand.

I.

Scott Perry represents Pennsylvania's 10th Congressional District in the House of Representatives. After the 2020 presidential election, Representative Perry used his personal cell phone to send and receive communications concerning allegations of fraud in that election. Some of these communications were with fellow Members of Congress or with congressional staff. Representative Perry also communicated with members of the Executive Branch and with individuals outside the federal government. He sent and received many of these communications before the House voted on whether to certify the electoral votes from the 2020 election. See U.S. CONST. amend. XII (directing that "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the [Electors'] certificates and the votes shall then be counted"); Electoral Count Act of 1887, ch. 90, 24 Stat. 373 (codified as amended at 3 U.S.C. § 15) (providing procedures for the congressional certification vote). Other communications occurred with respect to a vote on proposed legislation to alter election procedures. For the People Act of 2021, H.R. 1, 117th Cong.

In August 2022, a magistrate judge of the Middle District of Pennsylvania issued a search warrant authorizing the FBI to seize Representative Perry's phone and create a forensic copy of its contents. After executing the warrant, the FBI sought a separate search warrant from the District Court for the District of Columbia to review the forensic copy. The court granted the warrant, with the proviso that Representative Perry would have an opportunity to assert any claims of privilege under the Speech or Debate Clause before the government could review the phone's contents. For this procedure, the district court relied on United States v. Rayburn House Office Building, which held the Executive Branch must "afford[ ] [a] Congressman an opportunity to assert the [Speech or Debate] privilege" before reviewing materials that likely contain privileged items. See 497 F.3d 654, 663 (D.C. Cir. 2007).

Representative Perry filed a "Motion for Nondisclosure" in district court, arguing 2,219 communications were privileged from disclosure under the Speech or Debate Clause. He contended that the Clause protects Members' efforts at informal factfinding. In his view, a Member's attempts to gather information related to upcoming votes are always privileged legislative acts because investigation is essential to the wise exercise of the legislative power.

Following an in camera review of the contested records, the district court ordered Representative Perry to disclose all but 164 of them.¹ In re Search of Forensic Copy of Cell Phone of Representative Scott Perry ("In re Search"), No. 1:22-sc-02144, slip op. at 51 (D.D.C. Dec. 28, 2022). The court held informal factfinding is never a legislative act and therefore these communications are outside the Clause's scope. The court based this conclusion on the principle that formal factfinding—i.e., investigation pursuant to official authorization of a House of Congress—is protected under the Clause. The court inferred the privilege does not attach to factfinding in the absence of such official authorization. Id. at 21.

The court sorted the communications into three categories. As to category (1), Representative Perry's communications with individuals outside the federal government, the district court concluded these communications were not privileged because they were informal factfinding. Id. at 28-39. As to category (2), Representative Perry's communications with other Members of Congress and with congressional staff, the district court held some of these communications were privileged legislative acts, while others were too far removed from the legislative process. Id. at 39-46. As to category (3), Representative Perry's communications with members of the Executive Branch, the district court held none of these communications were privileged because they were "political" or not factfinding at all. Id. at 48-51.

We stayed the district court's order pending appeal and expedited the case. Our review is de novo. See Ass'n of Am. Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1032 (D.C. Cir. 2022).

II.

At the outset, the government maintains we lack jurisdiction over this appeal because orders requiring the disclosure of documents or records are ordinarily not immediately appealable. The subject of a disclosure order must usually "refuse to comply and litigate [disclosure] questions in the event that contempt or similar proceedings are brought against him"; he may then appeal any resulting contempt order. Gov't Br. 15-16 (quoting United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971)). The government argues this rule applies here, so that Representative Perry's only route to appellate review is to incur contempt and appeal from that order. We disagree.

Under our precedent, the district court's partial denial of Representative Perry's nondisclosure motion is an immediately appealable collateral order. The collateral order doctrine treats some decisions as "final" even if they do not terminate the case. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); 28 U.S.C. § 1291 (providing jurisdiction in the courts of appeals over "final decisions"). This is a "small category," and it "includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995).

This court has applied the collateral order doctrine in Speech or Debate cases involving the protection of Members' documents. In Rayburn, we held a district court's denial of a "[c]ongressman's motion for return of . . . seized materials" on Speech or Debate grounds was a collateral order. 497 F.3d at 657-59. And in In re Grand Jury Subpoenas, we reached the same conclusion with respect to the district court's denial of a motion to quash a subpoena on Speech or Debate grounds. 571 F.3d 1200, 1201-02 (D.C. Cir. 2009). Here, a Member of Congress asserted the Speech or Debate privilege by way of an evidentiary motion in district court, asserting that the Executive was wrongfully attempting to review privileged documents. The district court partially denied the motion. That is an immediately appealable collateral order under a straightforward application of Rayburn and In re Grand Jury Subpoenas.

The government contends we lack jurisdiction because of Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). In Mohawk, the Supreme Court held a district court's disclosure order is not immediately appealable even when the attorney-client...