US Justice Department unseals redacted search warrant for Rep. Scott Perry’s phone
Last month, after lengthy litigation, the U.S. Department of Justice released a redacted affidavit related to the government’s seizure of U.S. Rep. Scott Perry’s (R-Pa.) cell phone as part of its investigation into efforts to overturn the 2020 election.
The disclosure came after a coalition of Pennsylvania news organizations, represented by attorneys from the Reporters Committee for Freedom of the Press, successfully challenged the sealing of a wide range of records, including documents describing why the government believed there was probable cause that its search of the congressman’s phone would turn up evidence of a crime.
The details in the 83-page affidavit complement information that was previously made public through the work of the U.S. House of Representatives’ Select Committee investigating the Jan. 6, 2021, insurrection at the U.S. Capitol. As PennLive, a member of the news media coalition, reported, the newly released trove of records “add[s] another layer to the stack of evidence showing that Perry … worked feverishly in the last weeks of Trump’s term to help him cling to power.”
The two other members of the media coalition — the York Daily Record and York Dispatch — also reported that the affidavit reveals the congressman’s extensive contacts with the Trump administration, Justice Department officials, and others to overturn the election, despite having access to “information indicating DOJ possessed no credible evidence of fraud sufficient to alter the outcome of the election,” according to the affidavit.
Perry, who did not respond to the news outlets’ requests for comment, was never charged with a crime. The Justice Department closed its investigation into the effort to overturn the 2020 election after Trump won re-election to the White House last year.
The release of the search warrant records brings to a close Reporters Committee attorneys’ yearslong effort to help the news outlets bring transparency to two separate federal cases — one in Pennsylvania, the other in Washington, D.C. — concerning the seizure of Perry’s phone and its connection to the government’s investigation into the attack on the U.S. Capitol on Jan. 6, 2021. It’s also the latest positive outcome in the Reporters Committee’s broader litigation program pushing the Justice Department for greater transparency when it investigates sitting public officials.
In just the past few years, Reporters Committee attorneys have litigated four cases challenging the government’s attempt to shield information about investigations of sitting members of Congress. In all but one of them, their efforts have resulted in the unsealing of court records and, in some cases, powered important investigative reporting that has helped shed light on the government’s actions.
“When the Justice Department takes a step as dramatic as seizing property from a sitting member of the United States Congress, the public has a right to understand why they did that,” said Reporters Committee Staff Attorney Grayson Clary, one of a team of attorneys who has litigated all four unsealing matters. “The basic logic of the public’s right of access to judicial records is that the public gets to weigh the evidence on each side for itself and make the judgment as to whether something troubling is unfolding here.”
Rep. Perry and the Jan. 6 investigation
Reporters Committee attorneys’ involvement in the Perry cases began in September 2022, nearly two months after it became public that the congressman’s phone had been seized in connection with the Jan. 6 investigation. It was Perry himself who publicly shared the news of the seizure with Fox News. He later sued the Justice Department, seeking the return of data copied from his phone.
On behalf of PennLive, the York Daily Record, and the York Dispatch, Reporters Committee attorneys challenged the sealing of warrant materials filed in the matter. The materials — including the warrant application, any supporting affidavits that would explain the basis for the government’s dramatic move, and the docket sheet — were kept hidden from the public despite the fact that extensive information about Perry’s involvement in the events under investigation had already been made public as a result of news reporting.
The news outlets argued that the press and public have a presumptive common law and First Amendment right of access to search warrant materials, a context in which public oversight ensures that judges aren’t — as another federal district court put it — “merely serving as a rubber stamp for the police.” And in this particular case, Reporters Committee attorneys argued, the public’s interest in the records was especially significant: The case not only concerned an alleged conspiracy to disrupt the peaceful transfer of power, but the investigation of a sitting member of Congress also raised unique separation-of-powers concerns.
The government initially countered that it couldn’t unseal anything at all under any circumstances — including references to the fact that the investigation existed. The court, though, flatly rejected the government’s effort to avoid confirming the existence of an investigation that was already “public knowledge” and ordered it to justify on the public docket why it was trying to keep the information secret.
By the time the parties got around to arguing the merits of the Pennsylvania case, even more information about the search warrant had been unsealed in separate judicial proceedings, including the other matter Reporters Committee attorneys began litigating in Washington, D.C. in February 2023. That case concerned a second warrant the government had obtained giving it the authority to search through the actual contents of Perry’s phone in a way that wouldn’t compromise any information protected by the U.S. Constitution’s “speech or debate” clause, which grants members of Congress certain immunities in connection with their legislative responsibilities.
Reporters Committee attorneys opposed the sealing of an appeals court order that temporarily barred prosecutors from accessing the congressman’s communications. Reporters Committee attorneys also sought to make public all briefing in the case, including filings submitted by the government, Perry, and the U.S. House of Representatives. In addition to seeking the unsealing of the court records, Reporters Committee attorneys also requested that oral argument in this case be opened to the press and public.
The U.S. Court of Appeals for the D.C. Circuit first granted the Reporters Committee’s motion to make oral argument in the case open to the public, permitting press coverage of a case whose constitutional stakes drew significant attention. Months later, the district court and the appeals court ultimately decided to unseal a number of the parties’ filings in the case, revealing further factual detail about what exactly Perry and the Justice Department had been fighting about.
News outlets used those unsealed records — as well as other documents briefly released and then resealed by the court — to report on Perry’s phone communications with other allies of then-President Donald Trump who sought to keep him in power. As The Washington Post reported in November 2023, the records shed light on “the extent of Perry’s involvement in the machinations that have led to criminal charges” against the former president and others “over their attempts to prevent President Biden from taking office.”
More records unsealed
At this point, the government conceded that the revelations in the D.C. case meant that it could unseal some records in the Pennsylvania matter, including the docket and the search warrant — but with substantial portions blacked out. The court ordered those redacted records unsealed in 2023, but the news outlets continued to fight for the unsealing of other records still in dispute, including the most important one: the probable cause affidavit, which shows how strong or weak the government’s case was for seizing Perry’s phone.
In a 62-page opinion issued in January 2024, Magistrate Judge Susan Schwab of the U.S. District Court for the Middle District of Pennsylvania rejected the government’s argument that it should be allowed to shield the remaining records, including the affidavit, in their entirety.
“The United States has not specifically shown why it could not make targeted redactions to the warrant materials,” Judge Schwab wrote. “The United States should be made to do the hard work of going through the warrant materials in detail, and rather than merely presenting general arguments, should be held to its burden of showing that its interests outweigh the presumption of access.”
After the government objected to Judge Schwab’s recommendations, U.S. District Judge Jennifer Wilson issued an order in April 2024 that largely adopted the magistrate judge’s ruling in the news outlets’ favor. Judge Wilson concluded that the Justice Department had failed to justify keeping the materials sealed in their entirety and ordered the government to propose targeted redactions.
On Feb. 25, Judge Jennifer Wilson affirmed Magistrate Judge Schwab’s recommendation — filed under seal — that the government finally turn over the search warrant records with limited redactions. In her order, Judge Wilson gave the government until March 12 to turn over the redacted records.
After reviewing the 83-page affidavit, the news outlets informed the court on March 26 that they did not intend to challenge the remaining redactions to the search warrant materials.
Sen. Burr, Rep. Cuellar
In addition to the two Perry cases, Reporters Committee attorneys have also litigated two other matters concerning government investigations connected to sitting U.S. lawmakers: one involving U.S. Rep. Henry Cuellar (D-Texas) in Texas, the other involving Sen. Richard Burr (R-N.C.), in Washington, D.C.
On behalf of the Associated Press, Gannett Co., Inc., Gray Media Group, Inc., Hearst Corporation, and the Texas Tribune, Reporters Committee attorneys sought to unseal court records related to the FBI’s search of Cuellar’s home and campaign office as part of an investigation. The news outlets asked the U.S. District Court for the Southern District of Texas to make public a variety of records, including search warrant applications, supporting affidavits, and the search warrants themselves. They argued that the public has a presumptive right of access to the records at issue, and that the public has a powerful interest in understanding potential misconduct by a public official and the steps taken to investigate it.
The district court largely ruled against the media coalition in September 2023, concluding that the records could remain under seal to protect the Justice Department’s ongoing investigation given the facts of the particular case. But the proceeding still helped establish important precedent that the government can’t avoid the burden of justifying the secrecy of its investigation by refusing to confirm whether an investigation even exists, a maneuver the court called “concerning” and “disingenuous.”
Reporters Committee attorneys ultimately won a much more favorable decision in the Burr case. In that matter, Reporters Committee attorneys represented the Los Angeles Times in the newspaper’s effort to unseal the search warrant materials related to the government’s insider-trading investigation of the senator shortly after it concluded in January 2021 without charges.
After the U.S. District Court for the District of Columbia initially denied the Times’ application to unseal the records, citing the government’s unwillingness to confirm or deny the existence of an investigation, the D.C. Circuit reversed, holding, among other things, that the district court failed to properly weigh the public’s interest in accessing the records against the government’s interest in keeping the documents secret. The dispute returned to the district court, where Reporters Committee attorneys continued to challenge the government’s attempt to heavily redact the search warrant materials. In the end, the district court issued an opinion in August 2022 ordering the Justice Department to make public much of the material it initially attempted to keep secret, citing the powerful public interest in transparency.
New organizations, including the Los Angeles Times, used the publicly filed search warrant materials to report stories highlighting information about the Burr investigation that was previously hidden from the public. As the Reporters Committee wrote in summarizing the reporting, “the records shed significantly more light on the senator’s stock trades around the start of the COVID-19 pandemic, the government’s rationale for searching his phone, and how officials navigated an investigation into a sitting member of Congress.”
Litigating these cases is often slow, grinding work, battling the government over each inch of secrecy. But the principle is a vital one, with important stakes for the public’s ability to understand the administration of justice and the fitness of their public officials. The Reporters Committee will continue to fight to make transparency the norm in these investigations, not the grudging exception.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our newsletters and following us on Bluesky, LinkedIn, Instagram, Facebook, and X.