Lead Opinion
OPINION OF THE COURT
This case implicates the Speech or Debate Clause of the United States Constitution.
1. Factual and Procedural Background
A. The Search Warrant
Fattah is the subject of a federal grand jury investigation pending in the Eastern District of Pennsylvania.
Fattah maintains an email account hosted by Google, Inc., known as “Gmail.” Google acts as a repository, collecting emails sent and received by Gmail account holders like Fattah. Fattah uses this Gmail account for personal matters, but he also uses it for official business relating to his congressional duties.
In February 2014, the Government served Fattah with a grand jury subpoena seeking various documents, including electronic data from his Gmail account. In response, Fattah turned over some emails but objected to others on the bases of the Speech or Debate Clause, overbreadth, and relevance. Several months later, a magistrate judge issued a search warrant authorizing the FBI to search Fattah’s Gmail account. The warrant sought essentially the same information as the grand jury subpoena. Specifically, the search warrant requested: “For the period of January 1, 2008, through the present, concerning Google account [Chaka Fattah@gmail.com], all items which constitute evidence of a criminal violation of 18 U.S.C. §§ 1343,1344,1951, and 201.”
Pursuant to Google policy, Fattah received an email from Google on June 18, 2014, stating that it had received a search warrant from the Government seeking
B. The District Court Opinion
The District Court granted Fattah’s motion to intervene but denied his motion to quash the search warrant. The Court held that the execution of the warrant would not imperil the attorney-client privilege or the protection afforded by the work-product doctrine because the Government had suggested adequate review procedures, which entailed the use of a “taint team” to review for privileged documents.
Fattah argued that the warrant and affidavit did not make out probable cause and that the warrant was general and over-broad. The Court disagreed and additionally noted the odd procedural posture of the case, observing that Fattah “ha[dj cited no reported decision” supporting his contention that he may raise a Fourth Amendment challenge to a warrant prior to its execution.
Likewise, the District Court rejected Fattah’s argument that the warrant would violate the Speech or Debate Clause. The Court reiterated this Circuit’s standard that the Speech or Debate Clause secures a privilege of non-use, rather than of nondisclosure. The Court explained that “even if [Fattah’s] private, emails include a number of privileged documents, the mere disclosure of those documents [would] not impugn the Speech or Debate * Clause.”
In the alternative to quashing the search warrant, the House requested that the Court modify the warrant and allow Fat-tah access to the requested records. Denying the House’s request, the Court opined that “creating special protections for a Congressman’s private email account would encourage corrupt legislators and their aides to make incriminating communications through private emails, knowing that they will be disclosed only with the author’s approval.”
Fattah also fashioned his motion as a Federal Rule of Criminal Procedure 41(g) motion, a request for return of property. Fattah argued that the Government was in “constructive possession” of his property. The District Court denied this motion as well, explaining that because the Government has neither actual nor constructive possession, Rule 41(g) affords him no legitimate basis for relief.
Following the District Court’s rulings, Fattah filed a notice of appeal to this Court from the District Court’s order denying the motion to quash the unexecuted search warrant. On the same day, Fattah filed a motion to stay the order pending appeal. The District Court held a hearing on the motion to stay and subsequently denied the motion. Thereafter, we granted Fattah’s motion for a status quo order and for a stay of the District Court’s order pending appeal.
II. Discussion
Although Fattah presents several issues on appeal, we limit our discussion solely to jurisdiction and the proposed fil
A. The Collateral Order Doctrine
Fattah first contends that under the collateral order doctrine, we have appellate jurisdiction. Under 28 U.S.C. § 1291, an immediate appeal may be taken from any final decision of the district court. “Although ‘final decisions’ typically are ones that trigger the entry of judgment, they also include a small set of prejudgment orders that are ‘collateral to’ the merits of an action and ‘too important’ to be denied immediate review.”
Furthermore, the Supreme Court has noted that application of the collateral order doctrine involves a categorical inquiry and “[a]s long as the class of claims, taken as a whole, can be adequately vindicated by other means, the chance that the litigation at hand might be speeded, or a particular injustice averted, does not provide a basis for jurisdiction under § 1291.”
Fattah appeals from the District Court’s order denying a motion to quash an unexe-cuted search warrant on Speech or Debate Clause grounds. He relies on our decision
1. The first prong of the collateral order doctrine requires us to determine whether the District Court’s order conclusively determines the disputed issue. Fat-tah satisfies the first prong of the test. His motion to quash raised the issue of whether the search warrant could be executed, and the District Court conclusively answered that question in the affirmative. Thus, the order conclusively determined the disputed issue. Fattah, however, fails to satisfy either the second or third prongs, dooming his argument.
2. The second inquiry of the collateral order doctrine asks whether the District Court’s order resolves an important question completely separate from the merits. Fattah argues that the Speech or Debate Clause issues are “extremely important issues” that are separate from the merits of the case. He contends that because no indictment has been returned, the issue is separate from the merits because there is no “underlying action.” He is incorrect.
The Supreme Court has defined an “important issue” as “one involving interests that are ‘weightier than the societal interests advanced by the ordinary operation of final judgment principles’ or one that is ‘serious and unsettled.’ ”
Fattah’s argument, however, misconstrues the term “important.” We have held that, “[t]he type of ‘important issuefs]’ that the ‘completely separate from the merits’ requirement encompasses are those that are important in a jurisprudential sense.’ ”
Second, in addition to failing to raise an important issue, we believe Fat-tah’s claim is not completely separate from the merits. The requirements for collateral appeal are particularly “stringent” in the criminal context because “ ‘the delays and disruptions attendant upon intermediate appeal,’ which the rule is designed to avoid, ‘are especially inimical to the effective and fair administration of the criminal law.’ ”
Unlike these orders, which “finally resolve issues that are separate from guilt or innocence,”
. 3. The third prong of the collateral order doctrine focuses on whether the District Court’s order is effectively unre-viewable on appeal. Fattah asserts that the District Court’s order leaves him with no remedy since it does not limit the Government’s access to or use of Speech or Debate Clause documents. First, this argument relies on Fattah’s misconception that the Speech or Debate Clause provides
Our binding precedent requires us to narrowly circumscribe the contours of the collateral order doctrine. And, as the Supreme Court has emphasized, “although the Court has been asked many times to expand the ‘small class’ of collaterally ap-pealable orders, we have instead kept it narrow and selective in its membership.”
B. The Perlman Doctrine
1. The Perlman Doctrine Does Not Provide Jurisdiction for Fattah’s Speech or Debate Clause Claims.
Fattah’s claims regarding the Speech or Debate Clause fare no better under the so-called Perlman doctrine. The Perlman doctrine refers to the legal principle that a discovery order aimed at a third party may be immediately appealed on the theory that the third party will not risk contempt by refusing to comply.
Fattah argues that the Speech or Debate Clause precludes execution of the search warrant. He contends that the privilege is one of non-disclosure and that the search warrant was served on Google, which “is a disinterested third party which is not likely to permit itself to be placed in contempt” on his behalf.
Fattah urges that our decision in In re Grand Jury is instructive.
In this case, there is an important distinction to be drawn: Fattah fails to cite a legally cognizable privilege. Indeed, Fattah relies heavily on our case law discussing the Perlman doctrine in the attorney-client privilege context.
While courts have recognized that the bounds of these protections vary, they are all rooted in the notion that, “to the extent that the Speech or Debate Clause creates a Testimonial privilege as well as a Use immunity, it does so only for the purpose of protecting the legislator and those intimately associated with him in the legislative process from the harassment of hostile questioning.”
It cannot be, however, that the privilege prohibits disclosure of evidentiary records to the Government during the course of an investigation. In re Grand Jury (Eilberg) provides a good example. There we held that the disclosure of telephone records containing Speech or Debate Clause privileged documents was permissible.
This makes good sense. If it were any other way, investigations into corrupt Members could be easily avoided by mere assertion of this privilege. Members could, in effect, shield themselves fully from criminal investigations by simply citing to the Speech or Debate Clause. We do not believe the Speech or Debate Clause was meant to effectuate such deception. Rather, the “purpose of the Speech or Debate Clause is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.”
Any other reading of this privilege would eradicate the integrity of the legislative process and unduly amplify the protections to the individual Member. Indeed, “financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation. Depriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence.”
Accordingly, while the Speech or Debate Clause prohibits hostile questioning regarding legislative acts in the form of testimony to a jury, it does not prohibit disclosure of Speech or Debate Clause privileged documents to the Government. Instead, as we have held before, it merely prohibits the evidentiary submission and use of those documents.
Thus, based on these distinctions, we hold that the Perlman doctrine does not apply to the Speech or Debate Clause with respect to records disclosed to the Government in the course of an investigation. The Speech or Debate Clause does not prohibit the disclosure of privileged documents. Rather, it forbids the eviden-tiary use of such documents. As such, there is no “mischief’ for Fattah to stymy as there is no privilege in danger of destruction. Fattah is unable to challenge the disclosure regardless of to whom the request is made. This differs from a challenge to a subpoena requesting attorney-client privileged documents, where, as the saying goes, you cannot “unring the bell.” In that scenario, no remedy assuages disclosure and the privilege may very well be destroyed. Fattah’s challenge is far less serious and therefore should not receive such protections. There is no bell to unr-ing here — the privileged documents may be disclosed without violating the privilege, and Fattah may avail himself of several remedies to any alleged illegal search or seizure.
The impetus of the Perlman doctrine is to protect privilege holders from the disclosure of privileged materials by a disinterested third-party. Here, Fattah fails to cite a legally cognizable privilege to support his claim. Accordingly, Perlman is inapplicable, and we hold that we lack jurisdiction to entertain this appeal under this ground as well.
2. The Perlman Doctrine Provides Jurisdiction to Review Fattah’s Claims Under the Attorney-Client Privilege and Work-Product Doctrine.
Fattah contends that the Perlman doctrine provides appellate jurisdiction for this Court to review the merits of his attorney-client privilege and work-product doctrine claims regarding inadequate filtering procedures. We agree. Unlike Fattah’s Speech or Debate Clause claim, this claim succeeds because it is predicated on legally cognizable privileges continuously recognized under the Perlman Doctrine,
Fattah maintains that only attorneys should be involved in this type of privilege review and that the District Court did not realize a non-attorney agent would be the first line review.
C. Fattah’s Federal Rule of Criminal Procedure 41(g) Motion
Fattah also styled his pre-indictment motion as a request for relief under Federal Rule of Criminal Procedure 41(g) and contends that under this rule we have appellate jurisdiction. The Rule sets out the procedures criminal defendants should employ for the return of property, providing:
*531 (g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the- court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Denial of a pre-indictment Rule 41(g) motion is immediately appealable, only if the motion is: (1) solely for the return of property and (2) is in no way tied to an existing-criminal prosecution against the movant.
III. Conclusion
We take seriously the sentiments and concerns of the Supreme Court that Members are not to be “super-citizens” immune from criminal liability or process.
. The Speech or Debate Clause provides that, "for any Speech or Debate in either House,
.' Fattah was indicted by a grand jury on July 29, 2015.
. Each Member of the House of Representatives has an official email account. Presently, there is no policy in place mandating that Members solely utilize the official account to conduct business. [Tr. 28: 18-22].
. Gov't Supp.App. 15.
. Gov't Supp.App .11.
. App. 12.
. App. 14.
. App. 16.
.The House also suggests that jurisdiction to hear Fattah's claims may lie under the All Writs Act, as a petition for mandamus. Fat-tah, however, has not sought mandamus relief. Furthermore, mandamus is an extraordinary remedy, available only where (1) there is " 'no other adequate means to attain the relief sought;' " (2) the right to issuance of the writ is " 'clear and indisputable;' ” and (3) the issuing court is "satisfied that 'the writ is appropriate under the circumstances.' ” In re Pressman-Gutman Co., Inc., 459 F.3d 383, 399 (3d Cir.2006) (quoting In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006)). As previously stated, Fattah has the right to appeal the denial of a motion to suppress if he is convicted. Because Fattah has an adequate remedy in a suppression hearing following execution of the warrant, we decline to grant jurisdiction under this ground.
. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).
. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994).
. Id. at 868, 114 S.Ct. 1992.
. Mohawk Indus., Inc., 558 U.S. at 107, 130 S.Ct. 599 (internal quotation marks and alterations omitted).
. Id. at 108, 130 S.Ct. 599.
. 28 F.3d 283 (3d Cir.1994).
. Id. at 288.
. Id.
. United States v. Wecht, 537 F.3d 222, 230 (3d Cir.2008) (quoting Digital Equip. Corp., 511 U.S. at 879, 114 S.Ct. 1992; Cohen, 337 U.S. at 547, 69 S.Ct. 1221).
. Pierce v. Blaine, 467 F.3d 362, 370-71 (3d Cir.2006) (internal quotation marks and citation omitted).
. Appellant’s Br. 25 (quoting In re Grand Jury (Eilberg), 587 F.2d 589, 593 (3d Cir.1978)).
. Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 54 (3d Cir.1991) (second alteration in original) (quoting Nemours Found. v. Manganaro Corp., New England, 878 F.2d 98, 100 (3d Cir.1989)) (internal quotation marks omitted).
. See United States v. Helstoski, 635 F.2d 200, 203 (3d Cir.1980); In re Grand Jury Investigation (Eilberg), 587 F.2d at 597; In re Grand Jury (Cianfrani), 563 F.2d 577, 584 (3d Cir.1977).
. Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (quoting Di Bella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962)).
. See Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Abney, 431 U.S. at 659, 97 S.Ct. 2034; Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); Sell v. United States, 539 U.S. 166, 176, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).
. Flanagan v. United States, 465 U.S. 259, 266, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984).
. United States v. Williams, 413 F.3d 347, 355 (3d Cir.2005) (quoting Di Bella, 369 U.S. at 127, 82 S.Ct. 654).
. See, e.g., Abney, 431 U.S. at 659, 97 S.Ct. 2034 (explaining that "the very nature of a double jeopardy claim is such that it is collateral to, and separable from the principal issue at the accused’s impending criminal trial, i.e., whether or not the accused is guilty of the offense charged" and instead the claim "contest[s] the very authority of the Government to hale him into court to face trial on the charge against him”).
. 465 F.3d 114, 122-23 (3d Cir.2006).
. Id. at 122.
. Will v. Hallock, 546 U.S. 345, 349-50, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006).
. As previously noted, Google, as custodian of the records at issue, is the third party in this case.
. In re Grand Jury, 705 F.3d 133, 138 (3d Cir.2012).
. 247 U.S. 7, 12-13, 38 S.Ct. 417, 62 L.Ed. 950 (1918).
. Id. at 13, 38 S.Ct. 417.
. In re Flat Glass Antitrust Litig., 288 F.3d 83, 90 n. 9 (3d Cir.2002) (quoting In re Sealed Case, 141 F.3d 337, 340 (D.C.Cir.1998)).
. Appellant’s Br. at 28-29.
. 705 F.3d at 133.
. Id. at 149.
. See, e.g., In re Grand Jury Subpoena, 745 F.3d 681, 686-87 (3d Cir.2014) (permitting a client and corporation to intervene and quash a subpoena directed to their attorney for testimony under the Perlman doctrine on the basis of the attorney-client privilege and work-product doctrine); In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 800-01 (3d Cir.1979) (permitting a corporation to intervene and immediately appeal an adverse disclosure order to protect the attorney-client privilege and work-product doctrine). The only case Fattah cites to applying the Perlman doctrine in the context of the Speech or Debate clause is In re Grand Jury (Cianfrani), 563 F.2d 577 (3d Cir.1977). That case, however, is distinguishable. Firs*t, the case involved a state senator who was charged in a federal prosecution. We ultimately held that neither the state nor federal Speech or Debate Clause privileges extended in such a case. Id. al 580-82. Second, the case involved a subpoena versus an unexecuted search warrant. A subpoena, of course, may be challenged prior to compliance. In stark contrast, a search warrant is properly challenged after it is executed. Accordingly, In re Grand Jury (Cianfrani) is of limited utility to Fattah.
.For its part, the House of Representatives as amicus insists that Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), is "on all fours.” House Br. 22. We disagree. In Gravel, a Senator moved to prevent the questioning of his aide in a grand jury proceeding. The Court held that the privilege established by the Speech or Debate Clause that prevents the questioning of a Member of Congress regarding legislative acts likewise bars the questioning of a Member's aide regarding actions which would have been legislative acts, and therefore privileged, if performed by the Member personally. The Court, however, did not squarely address the Perlman issue. Id. at 608, n. 1, 92 S.Ct. 2614 ("The Court of Appeals, United States v. Doe, 455 F.2d 753, 756-757 (C.A.1 1972), held that because the subpoena was directed to third parties, who could not be counted on to risk contempt to protect intervenor's rights, Grav
. Doe v. McMillan, 412 U.S. 306, 311-12, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973).
. Gravel, 408 U.S. at 616, 92 S.Ct. 2614.
. United States v. Helstoski, 442 U.S. 477, 487, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979).
. In re Grand Jury (Eilberg), 587 F.2d at 597.
. United States v. Renzi, 769 F.3d 731, 746 (9th Cir.2014), petition for cert. filed, No. 14-1082 (Mar. 9, 2015) ("Evident from its plain language, the focus is on the improper questioning of a Congressman. As such, the Clause is violated when the government reveals legislative act information to a jury because this would subject a Member to being ‘questioned’ in a place other than the House or the Senate.” (internal quotation marks omitted)).
. In re Grand Jury (Eilberg), 587 F.2d at 597.
. Id. (citing U.S. Const. art. 1 § 5, cl. 3).
. United States v. Renzi, 651 F.3d 1012, 1036 (9th Cir.2011) (quoting United States v. Brewster, 408 U.S. 501, 524-25, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972)).
. Helstoski, 442 U.S. at 492, 99 S.Ct. 2432 (quoting Gravel, 408 U.S. at 618, 92 S.Ct. 2614).
. Id. at 491, 99 S.Ct. 2432 (quoting United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)).
. Renzi, 651 F.3d at 1036 (emphasis in the original) (quoting Brewster, 408 U.S. at 524-25, 92 S.Ct. 2531).
. See, e.g., In re Grand Jury Subpoena, 745 F.3d at 686.
.Certain courts have limited the circumstances in which prosecutors may employ taint teams during criminal investigations. See, e.g., In re Grand Jury Subpoenas, 454 F.3d 511, 522 (6th Cir.2006). But because Fattah does not argue that the use of a taint team is inappropriate in his case, we have no occasion to consider the appropriate limits, if any, on their use. Of course, a court always retains the prerogative to require a different method of review in any particular case, such as requiring the use of a special master or reviewing the seized documents in camera itself. See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 962 (3d Cir.1984); Black v. United States, 172 F.R.D. 511, 516 (S.D.Fla.1997); United States v. Abbell, 914 F.Supp. 519, 520-21 (S.D.Fla.1995); In re Search Warrant for Law Offices Executed on Mar. 19, 1992, 153 F.R.D. 55, 59 (S.D.N.Y.1994).
. Indeed, the District Court held that the use of "taint teams” had been cited with approval in this Circuit. The cases the District Court cited to, however, all involved an attorney at the first level of review. See, e.g., Manno v. Christie, No. 08-cv-3254, 2009 WL 995455, 2009 U.S. Dist. LEXIS 31470 (D.N.J., Apr. 13, 2009). Likewise, the District Court never explicitly acknowledged that review would be conducted by a non-lawyer. Rather, the court stated review would be conducted by "FBI Special Agents not involved in the investigation.” App. 10.
. Fattah Br. 61.
. Di Bella, 369 U.S. at 131-32, 82 S.Ct. 654; see also In re Grand Jury, 635 F.3d 101, 103-05 (3d Cir.2011).
. Brewster, 408 U.S. at 516, 92 S.Ct. 2531.
Concurrence in Part
dissenting in part:
I agree with my colleagues that the Speech or Debate Clause does not confer a privilege of confidentiality. Thus, the motion to quash the search warrant on that basis must be denied. Any other conclusion is foreclosed by a long line of precedent.
“When a district court orders a witness — whether a party to an underlying litigation, a subject or target of a grand jury investigation, or a complete stranger to the proceedings — to testify or produce documents, its order generally is not considered an immediately appealable ‘final decision[]’ under § 1291.” In re Grand Jury, 705 F.3d 133, 142 (3d Cir.2012) (alteration in original). The appellant instead only secures the right to an immediate appeal when he defies the order, is held in contempt, and appeals the con
Where a disclosure order is addressed to a disinterested third party, however, the incentive structure shifts. Unlike the holder of a privilege, a mere custodian of records cannot be “expected to risk a citation for contempt in order to secure [the privilege holder] an opportunity for judicial review.” United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). Moreover, without a means to force the third party to protect the privilege holder’s rights, it is “left ... ‘powerless to avert the mischief of [a disclosure] order.’/’ Id. (quoting Perlman v. United States, 247 U.S. 7, 13, 38 S.Ct. 417, 62 L.Ed. 950 (1918)). Under the Perlman doctrine, we allow a party opposing a discovery order on grounds of privilege to appeal immediately where the order is directed at a third party who lacks a sufficient stake in the proceeding to risk contempt by refusing compliance. See id.
The same principle applies here: As the party on which the warrant was served, Google could refuse to comply and’ seek appellate review through a separate proceeding for contempt.
My colleagues of course suggest otherwise. They conclude that we are without jurisdiction because there is no confidentiality privilege under the Speech or Debate Clause. But “[t]he question of the éxistence of a privilege ... pertain[s] to the merits,” Slark v. Broom, 7 La. Ann. 337, 342 (1852), and it is well established that “jurisdiction under the Perlman doctrine does not rise or fall with the merits of the appellant’s underlying claim for relief,” Doe No. 1 v. United States, 749 F.3d 999, 1006 (11th Cir.2014). See also Ross v. City of Memphis, 423 F.3d 596, 599 (6th Cir.2005) (“[Perlman ] jurisdiction does not depend on the validity of the appellant’s underlying claims for relief.”). Rather, “[i]t is the possibility of disclosure of information which is thought to be confidential that is central to the Perlman exception.” United States v. Calandra, 706 F.2d 225, 228 (7th Cir.1983) (emphasis added).
Not only do my colleagues fail to cite any case law for their novel proposition that the Perlman doctrine depends on the
We are not without company; other appellate courts have done the same. See, e.g., In re Grand Jury Proceedings, 832 F.2d 554, 560 (11th Cir.1987) (permitting an interlocutory appeal, but holding “that the privilege asserted by [the] appellants [was] without a basis in Florida law” and that they “ha[d] no privilege of nondisclosure under state law”); In re: a Witness Before the Special Grand Jury 2000-2, 288 F.3d 289, 291, 295 (7th Cir.2002) (invoking Perlman for the court’s jurisdiction though refusing to extend the attorney-client privilege to communications between government attorneys and their state .clients).
The failure to recognize our jurisdiction under Perlman is particularly puzzling given that we have previously relied on that doctrine to review — and reject — indistinguishable attempts to bar disclosure under the Speech or Debate Clause. While my colleagues distinguish one such case, In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577 (3d Cir.1977), as having involved a state, rather than federal, congressperson, I fail to see the relevance of that distinction. Neither did a panel of our Court the following year when U.S. Congressman Eilberg intervened in grand-jury proceedings and appealed. See Eilberg, 587 F.2d at 597 (concluding we had jurisdiction to review the interlocutory appeal, but holding, that, “as we ha[d] said on two other occasions, the [Speech or Debate]. privilege when applied to records or third-party testimony is ... not [one] of non-disclosure” (citing United States v. Helstoski, 576 F.2d 511 (3d Cir.1978), aff'd, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979), aff'd sub nom. Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979); Cianfrani, 563 F.2d 577)).
Finally, that these prior Speech or Debate Clause cases arose in the context of a subpoena duces tecum (rather than search warrant) is also an irrelevant distinction. If the Perlman doctrine did not appiy to search warrants, Fattah would similarly be unable to rely on that doctrine to appeal his attorney-client privilege and work-product claims. "Yet here my colleagues correctly rely on the Perlman doctrine to conclude that “this claim succeeds.” Majority Op. 529. Similarly, other courts have applied Perlman even though a search warrant has been used. ..See, e.g., In re Berkley & Co., 629 F.2d 548, 551-52 (8th Cir.1980) (applying Perlman to consider the denial of a motion to prevent the Government from disclosing to the grand jury certain privileged documents it had previously seized); United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir.2006) (applying the Perlman doctrine where seized documents were in the temporary possession of a special master); In re Sealed Case, 716 F.3d 603, 612 (D.C.Cir.2013) (Kavanaugh, J., concurring) (suggesting that if a search warrant is used to seize allegedly privileged documents, the
The Supreme Court has repeatedly admonished appellate courts not to “conflate[e] the jurisdictional question with the merits of the appeal.” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 627, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). I believe that, by intertwining the cognizability of the privilege with that of an appellate court’s jurisdiction, the majority contravenes this mandate. I therefore respectfully dissent in part.
. Of course, our binding precedent also provides that, while the Government has a right to review the documents and argue privilege, Fattah has an equal right to participate in that process, particularly given "the information as to [what] were legislative acts is in his possession alone.” In re Grand Jury Investigation (Eilberg), 587 F.2d 589, 597 (3d Cir.1978); see also id. (holding that a congressman asserting the Speech or Debate Clause privilege in a grand-jury proceeding "should be permitted to indicate by affidavit or testimony those calls which he contends are. privileged”).
. To the extent the Government argues that even contempt proceedings are unavailable for review of an unexecuted search warrant issued under 18 U.S.C. § 2703(b)(1), this position is directly inconsistent with its position in a pending Second Circuit case. See Brief of the United States of America at 8 n. 5, In re Warrant To Search Certain E-Mail Account Controlled & Maintained by Microsoft Corp., No. 14-2985 (2d Cir. Mar. 9, 2005) (noting that the District Court’s "entry of a contempt order" gave the Second Circuit jurisdiction to review an unexecuted search warrant issued under § 2703); see also In re Warrant To Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., No. 13-mj-2814, 2014 WL 4629624 (S.D.N.Y. Aug. 29, 2014) (Preska, C.J.). (Interestingly, in that case the Government also has taken the contrary position that this type of search warrant isn’t really a search warrant at all.)