The Travel Angle To FBI Seizures: A Congressman’s Phone The Day After The Raid On President Trump

The FBI raid on President Trump’s Mar-a-Lago property doesn’t much concern me. A judge signed off on the warrant. Given the gravity of the situation the raid would have been approved by the FBI Director, also appointed by Trump. While I have concerns that search warrants generally have too low of a threshold, none of us would receive the careful process that would have to have gone on here. Still, I don’t know whether to expect anything to come of it.

That whole issue aside, what interests me is that the FBI interdicted Representative Perry at the airport to seize his cell phone one day after the raid on Mar-a-Lago. Proving once again: there is a travel angle to everything.

Rep. Scott Perry (R-PA) had a key role in trying to install a new attorney general who would comply with the President’s wishes to help overturn election results, according to the House committee investigating the attack at the Capitol on January 6th.

  • Three FBI agents approached him at the airport
  • They had a warrant for his personal cell phone

“This morning, while traveling with my family, 3 FBI agents visited me and seized my cell phone. They made no attempt to contact my lawyer, who would have made arrangements for them to have my phone if that was their wish. I’m outraged — though not surprised — that the FBI under the direction of Merrick Garland’s DOJ, would seize the phone of a sitting Member of Congress,” Perry said in his statement. “My phone contains info about my legislative and political activities, and personal/private discussions with my wife, family, constituents, and friends. None of this is the government’s business.”

The FBI isn’t obliged to politely request evidence from an individual’s lawyer prior to securing that evidence. As we know from other cell phones text messages about January 6th that have been sought with a subpoena can be deleted.

And of course the phone contains both potentially relevant and non-relevant information. Those need to be extracted and separated. Generally personal information won’t raise concerns. Legislative information will be concerning, for separation of powers reasons. But it’s clear that the FBI can do this.

Rep. William Jefferson (D-LA) was convicted in a bribery case involving accusation of accepting hundreds of thousands of dollars in bribes to promote West African energy and communications companies. $90,000 was found in his refrigerator. The FBI raided his congressional office. Ultimately several of the counts against him were tossed after the Supreme Court’s ruling in McDonnell v. United States which generally requires tying direct action to payments.

Regarding the raid of Representative Jefferson’s office, a three judge panel of the United States District Court for the District of Columbia ruled that prior to reviewing the files it was first necessary to ascertain which pertained to his work as a legislator. A Members of Congress is subject to criminal law just like anyone else, but raiding a Congressional office led to special circumstances where the FBI had to take care not to impinge on separation of powers or the Speech or Debate clauses of the constitution. There was not, however, anything in the constitution which prevented the raid.

There’s a high burden to take a sitting Congressman’s phone (although less of a burden than raiding their congressional office!), and to seize items from a former President. Such officials are generally accorded a higher level of deference than the rest of us.

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