CNN —
A federal appeals panel on Tuesday declined to issue a broad order blocking special counsel Jack Smith’s team from accessing data from Pennsylvania Rep. Scott Perry’s cell phone that was seized by the FBI, and sent the case back to a lower court for further litigation over what material investigators can examine.
Federal investigators seized Perry’s phone in August 2022 while investigating the efforts by former President Donald Trump and his Republican allies to overturn the 2020 election. However, Smith’s team hasn’t yet examined the material, which was set aside while Perry’s legal challenges play out.
Perry asked the DC Circuit Court of appeals to block the Justice Department from accessing his cell phone. Instead of granting that request, the appeals panel sent the case back to a lower court to “apply the correct standard” and determine which of Perry’s communications can be examined.
The lower court was ordered to weigh Perry’s privilege arguments and determine if investigators can examine his communications with “individuals outside the federal government, communications with members of the Executive Branch, and communications with other Members of Congress regarding alleged election fraud,” according to a docket entry made public Tuesday.
The full opinion from the appeals panel wasn’t made public, so it’s not clear what standard the judges want to see applied to Perry’s texts. (Most of the litigation in the case is under seal.)
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