It has been described as a Catch-22, but the ongoing legal battle being waged by media organizations attempting to obtain the search warrant that led to the seizure of US Scott Perry’s phone is more like something out of Kafka.
To review, last year, the media organizations – the York Daily Record, The York Dispatch and PennLive – asked the US Department of Justice to release the search warrant, saying that it was a matter of public record and interest.
The government objected and then asked that its court filing be sealed, claiming its response to the request could contain information damaging to its investigation.
In essence, the government was saying it objected to the request for the search warrant and that the reasons for its objections should also be shielded from public scrutiny, something the lawyer representing the media organizations described as “a fundamentally unfair way to litigate a case. “
That was last fall.
Previously:YDR, others sued to unseal warrant for Perry’s phone. Feds want their response to be secret
What started it:US Rep. Scott Perry says FBI agents seized his cellphone
Last month, federal Magistrate Susan Schwab of the US District Court in Harrisburg ordered the government to submit a redacted version of the court filing, protecting any information that may be vital to the investigation while making public its general reasons to justify withholding the text of the search warrant.
“The United States wants to keep secret the fact that this court issued a search warrant for Representative Perry’s phone,” Schwab wrote in her order. “But the fact that this court issued a search warrant is already public knowledge.”
The government submitted the redacted document that outlined its reasoning for keeping the search warrant secret. But the document is redacted to the point of being almost incomprehensible.
For instance, in one part of the government’s brief, under the heading “The Government’s Investigation,” there is a sentence that begins “As part of this investigation, the government is looking into the involvement of Scott Perry, the congressional representative for the 10th district.” What follows is blacked out, for the rest of the page and part of the next.
So, the bottom line is that the government argued that the public is not entitled to see the search warrant. Then, the government said the public is not entitled to know the reasons why it objects to making the search warrant public. Then, the government, after being ordered by the court to release a redacted version of the document, submitted a document with large parts of it blacked out.
“That’s where we’re at in this litigation,” said Grayson Clary, a staff attorney for the nonprofit Reporters Committee for Freedom of the Press, which is representing the media organizations in the case. “When we reach for an analogy, we use the ouroboros, the snake eating its own tail.”
It all started last August when the FBI executed the search warrant and seized the York County Republican representative’s phone while he was on vacation with his family in New Jersey. The FBI and the Department of Justice sought access to his phone as part of its investigation into former President Donald Trump’s attempts to overturn the results of the 2020 election, an effort that Perry had assisted.
The media organizations sought the search warrant – normally a public document – last September, but the request was refused.
As that litigation has meandered through the federal courts, Perry has sought to block the Justice Department from examining his text messages, claiming that the more than 2,000 texts purportedly related to efforts to overturn the results of the presidential election were privileged and protected by his status as a member of Congress.
Last week, a federal judge rejected Perry’s claim and gave the Department of Justice access to his texts.
An email to Perry’s office seeking comment went unanswered.
Columnist/reporter Mike Argento has been a York Daily Record staffer since 1982. Reach him at firstname.lastname@example.org.
This article originally appeared on York Daily Record: Judge unseals feds’ response to suit seeking Rep. Perry search warrant