In it, but not of it. TPM DC

In the spring of 2013, two federal investigators spoke to a Republican House staffer about a recent leak of a Medicare policy change that had set off a flurry of stock trades in major health care companies.

The investigators, one from the FBI and the other from the Health and Human Services Department, wanted to know about a conversation the staffer, Brian Sutter, allegedly had with a lobbyist on April 1, 2013, the day the information leaked.

According to court documents filed last week in Manhattan federal court, Sutter initially told investigators he could not remember having spoken to the lobbyist about the Medicare policy change. The lobbyist had said during the investigation that he and Sutter discussed the information, the documents said.

But several days later, the court documents said, an attorney for the House wrote a letter to the FBI and HHS on Sutter’s behalf saying the staffer thought more about his answers and his "best recollection now" is that he "may have" spoken with the lobbyist.

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At the center of the ongoing lawsuit between House Republicans and the Securities and Exchange Commission over subpoenas for a House committee and a congressional aide is the Constitution's separation of powers. And the key to unlocking that dispute -- whether the House must comply with subpoenas from the executive branch -- might be a 1971 Supreme Court case involving the Pentagon Papers leaked by Daniel Ellsberg (pictured).

The aide, Brian Sutter, and the House Ways and Means Committee have been sued by the SEC to force them to comply with a subpoena issued as part of an investigation into the leak of non-public information to Wall Street back in April 2013. The leak, about an imminent policy change to Medicare, resulted in significant trading for some health care companies, which were about to benefit from a reversal in proposed funding cuts. A federal grand jury in New York is also investigating the leak.

The lawsuit, in which the SEC alleged Sutter "may have been" the source of the leak, followed the refusal of Sutter and the committee to comply. The counsel's office for the House, which is representing Sutter and the committee, told TPM earlier this week that the subpoenas "run seriously afoul of the Constitution's Speech or Debate Clause, and we expect to respond in due course on that ground, among others."

Generally speaking, the Speech or Debate clause, found in Article I of the Constitution, protects members of Congress from being prosecuted for their official work, except in extreme circumstances. It is a core element of the Constitution's separation of powers doctrine.

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Mississippi state Sen. Chris McDaniel's (R-MS) Senate campaign is calling on Mississippi Republican Party Chairman Joe Nosef to direct circuit clerks to provide the campaign with poll books from the June 3 Democratic primary and the June 24 Republican runoff between McDaniel and Sen. Thad Cochran (R-MS), who won the runoff. But Nosef himself said he doesn't seem to have the authority to do that.

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Attorneys for the House Republican aide at the center of investigations into the leak of a Medicare policy change to Wall Street are providing information to the Justice Department, a source familiar with the legal negotiations told TPM on Thursday.

Because of that, a federal grand jury subpoena of the staffer has been withdrawn, according to the source.

Attorneys for Brian Sutter, the top health policy director on the House Ways and Means Committee, offered to provide the information that he would have given in grand jury testimony, the source said.

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Some conservatives aren't happy that their preferred candidate, state Sen. Chris McDaniel (R) lost to Sen. Thad Cochran (R-MS) in the runoff of the GOP primary for U.S. Senate in Mississippi. Many tea party types are openly speculating foul play and that Democrats and black voters were involved. Take Rush Limbaugh who wondered if Cochran's campaign slogan in Mississippi over the last few days was "Uncle Toms for Thad."

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