Rep. Scott Perry
CNN  — 

A federal appeals court on Thursday questioned the access that Justice Department prosecutors can have to a GOP lawmaker’s phone seized as part of the special counsel investigation into 2020 election subversion.

At a partially public hearing Thursday, the US DC Circuit Court of Appeals grappled with the scope of a constitutional provision that shields legislators from certain law enforcement actions and had tough questions for both the attorney representing Republican Rep. Scott Perry, whose phone was seized by the FBI in August, and for the Justice Department attorney arguing in favor of prosecutors being able to obtain communications from the device.

Many details of the dispute remain shrouded in secrecy, including an underlying district court opinion that Perry appealed to the circuit court.

An attorney for Perry said Thursday that the files in question pertained to the discussions the Pennsylvania congressman was having about two legislative matters: a election rules reform bill Congress was considering in early 2021 and Perry’s vote on the January 6, 2021, certification of the presidential election results.

A lawyer for the special counsel’s office did not provide that level of detail about what’s at issue in the case, argued that the Justice Department should be able to access a member of Congress’ cell phone records if they were making calls as informal research before a possible legislative vote.

The key issue in the case is whether the Constitution’s so-called Speech or Debate Clause – which says legislators cannot be questioned on “any Speech or Debate” in Congress – applies to a lawmaker’s “informal fact finding” that was not formally authorized by Congress.

Two judges on the circuit panel – Circuit Judges Gregory Katsas and Neomi Rao, both Trump appointees – zeroed in on this issue in their questions for DOJ attorney John Pellettieri. They seemed to balk at the hard line he drew that those kinds of informal communications were not protected by the clause. The judges, however, also grilled Rowley on whether he was pushing a virtually limitless interpretation of the Clause that would shield all sort of communications lawmakers had, including with individuals not in Congress.

“Shouldn’t we put weight on the fact that what we’re talking about here seems far afield from Speech or Debate?” Katsas asked Rowley.

How the DC Circuit views the 17-word constitutional provision could have implications not just for how the Trump investigations proceed, but what sort of immunity legislators have in all sorts of court proceedings going forward – particularly if the conduct is not clearly part of their formal activities in Congress.

“We want members of Congress to be able to do their jobs without constantly being hauled into court,” said Elliot Williams, a former Justice Department official who also worked for the Senate Judiciary Committee. “But it defies logic and probably the Constitution for Congress to think it can wave a wand and call everything it touches quote ‘informal legislative fact-finding.’”

Perry was identified by the House January 6 committee as a player in Trump’s efforts to weaponize the Justice Department. Perry did not comply with a subpoena from the committee for his testimony.

After the FBI seized Perry’s phone access, he filed a public lawsuit challenging investigators’ access to its contents. However, the wrangling between him and the Justice Department has played out in private court proceedings.