In the “must he” or “mustn’t he” world of Rep. Scott Perry’s messages related to the 2020 election, a federal judge ruled Tuesday that he must disclose them to prosecutors.

Chief U.S. District Judge James Boasberg concluded that Perry (R-10) must disclose to federal prosecutors more than 1,600 emails, text messages and other communications related to the investigation into Donald Trump and his allies’ bid to subvert the 2020 election.

Although the ruling did not force the release of all messages, Boasberg said that the majority of messages could not be shielded from prosecutors by Perry’s constitutional protections as a member of Congress.

He concluded that the 1,659 exchanges of emails, text messages and other communications had little to do with Perry’s job as a legislator and therefore were not subject to the Constitution’s “speech or debate” clause, which prohibits prosecutors and courts from prying into the official business of Congress. Boasberg did say that nearly 400 of Perry’s records are protected by the clause.

The judge broke the communications with other members of Congress into no fewer than 14 subcategories, finding that nine are not privileged:

• non-substantive electronic newsletters and press releases concerning topics outside the legislative sphere
• discussions about efforts to work with members of the Executive Branch and state legislators to combat alleged election fraud
• communications related to efforts to influence the conduct of members of the Executive Branch and state legislators
• preparatory discussions regarding election fraud-related press releases and letters;
• discussions regarding election-related litigation efforts and amicus briefs and other non-legislative efforts to combat alleged election fraud
• discussions about congressional campaigns and results
• discussions about Perry’s press coverage and media strategy
• discussions regarding the spread of COVID-19, COVID-19 policy, and potential treatments
• non-substantive communications

Boasberg also classified Perry’s communications involving members of the Executive Branch into eight subcategories, finding that only two were covered by the Speech or Debate Clause. The other six were:

• communications seeking to influence the conduct of members of the Executive Branch or otherwise providing information to such individuals regarding alleged election fraud
• discussions about non-legislative efforts to combat alleged election fraud
• communications seeking to influence the conduct of members of the Executive Branch or otherwise providing information to such individuals regarding non-election-related policy issues
• discussions about non-legislative efforts regarding non-election-related policy issues
• communications regarding the procedures that Vice President Pence must follow under the Electoral Count Act
• non-substantive communications.

An attorney for Perry said he has not yet determined whether he will appeal Boasberg’s ruling.

The FBI seized Perry’s phone in 2022 — before Jack Smith was appointed special counsel — as part of a federal investigation into efforts to interfere with the certification of the 2020 election. Investigators sought a second warrant to access Perry’s data but had to wait as Perry asserted speech or debate protection over 2,219 records.

A federal judge previously ruled that the majority of those records were not protected, and ordered Perry to disclose them. The Pennsylvania Republican appealed that decision.

The appeals court largely upheld the judge’s order but ruled that speech or debate protection could apply in some circumstances that the lower court had rejected, requiring a re-review of the records from the district court.