The seizure of Rep. Scott Perry’s personal cell phone by the FBI is likely unconstitutional. Now that I just gave a constitutional opinion contrary to the view of the government, does that make me a criminal, and will they come to arrest me? Welcome to the Fourth Reich.
On Tuesday, Rep. Perry announced that three FBI agents had seized his cell phone. While information concerning their warrant is unknown at this point, the media is speculating that it has to do with accusations of the January 6 Committee that Perry was involved in the so-called conspiracy to overturn the election results and advocate for an alternate slate of electors from Pennsylvania.
But where is the commission of a crime? The question of whether state legislators or governors are the final say in selecting state electors or whether the vice president is just a ceremonial proceeding officer over the congressional counting of those electors or whether he has the final say is a political/constitutional question. It’s not a criminal act to advocate on behalf of one side, even if another individual believes those are reprehensible views to hold.
The fact that violence resulted from a protest of one side of this debate doesn’t implicate the members of Congress who took the losing side of the argument. It’s like saying the Democrat members of Congress who not only advocated for de-incarceration and defunding of the police, but downright encouraged violent protests, can be criminally charged for the deaths, injuries, and billions in damage caused by BLM and Antifa. Can a Republican president have his DOJ seize the phones of the members who marched at BLM riots where real violent criminal acts were committed?
Now the opposition party in the executive branch has the cell phone of the chairman of the Freedom Caucus, who undoubtedly kept a lot of political strategy and communication on that phone. This is exactly what our Founders sought to protect in the Speech and Debate Clause of Art. I, § 6, which provides that "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place."
For the same reason, in that same section, the Constitution states, “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States.” Just like the Founders didn’t want collaboration between the legislative and executive branches, they didn’t want the executive branch to be able to prosecute the legislators for speaking their minds. No collaboration with or conspiring against the separation of powers. Yes, that would necessarily foreclose prosecution of sleazy politics (not stand-alone criminal activity), but the definition of sleazy and even immoral politics is in the eye of the beholder, or shall we say the political opponent.
In 1964, Maryland Democrat Rep. Thomas Francis Johnson was convicted in federal court on seven counts of violating the federal conflict-of-interest statute (18 U.S.C. 281) and on one count of conspiring to defraud the United States (18 U.S.C. 371). The main case against him brought by the Justice Department was an accusation that he took money from banking interests in exchange for delivering a favorable speech on the floor of the House. However, the Fourth Circuit and the Supreme Court categorically overturned those convictions based on a violation of the Speech and Debate Clause.
In U.S. v. Johnson (1966), the Supreme Court concluded, “However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions.” In other words, as much as we would like to root out political corruption through criminal charges against this practice, the Founders understood that the collateral damage of affording the executive branch powers to criminalize legislative activity, political opinions, and speeches would be too chilling for a free republic.
Which is why they noted that Johnson’s speech was “precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.” The court made clear that the Clause must be “read broadly to effectuate its purposes,” ultimately concluding that the Clause forecloses prosecution based on evidence relying upon “the legislative acts” of a legislator or “his motives for performing them.”
Keep in mind that Perry is the member of Congress who last year filed articles of impeachment against Attorney General Merrick Garland, the ultimate boss of the FBI, who signed the warrant for the Trump raid. This is exactly the sort of conflict of interest in law enforcement that our Founders wanted to avoid. They particularly feared the collusion between the law enforcement officials of the executive branch and the magistrates, a fear that we are witnessing in real life with magistrate Judge Bruce Reinhart, a former Jeffrey Epstein lawyer who hated Trump and approved the warrant against Trump. The Supreme Court explains this exact problem in the 1966 Johnson case as follows:
It was not only fear of the executive that caused concern in Parliament, but of the judiciary as well, for the judges were often lackeys of the Stuart monarchs, levying punishment more "to the wishes of the crown than to the gravity of the offence." There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause. In scrutinizing this criminal prosecution, then, we look particularly to the prophylactic purposes of the clause.
Obviously, if someone commits fraud or another criminal act as a member of Congress, he can be prosecuted. If a member of Congress acted violently on January 6, he can be prosecuted. But legislators can’t be prosecuted for offering legal, constitutional, and political opinions or advice for a president of their party to fire people who are fully within his right to fire.
Most people find politics reprehensible and even, in a colloquial way, downright criminal. But what’s worse is to allow one side of politics to criminalize the other side’s politics. Historically, it is the Left that has spawned exponentially more political violence, including in many state capitals, during debates over a political matters, and they didn’t need help from FBI agents provocateur to actually make the violence go kinetic. Are we now to say that any Democrat who took the political side of the protesters is completely subject to questioning, seizure, subpoena, and potential arrest based on the political statements they made in the lead-up to the vote or legislative proceedings?
This is all occurring in the shadow of two years of government officials treating political opponents and their political views as domestic terrorism on par with Islamic jihad. This didn’t begin with Trump. They have been doing this to ordinary Americans who can’t afford high-priced lawyers. Hopefully, the GOP politicians, now seeing they are not immune from the suspension of due process and legal norms, will finally do what it takes to neutralize the tyranny rather than fundraise off it.