Rep. Chris Collins (R-NY) was well aware, when he allegedly engaged in insider trading in 2017, that he was under scrutiny from the Office of Congressional Ethics (OCE). He also acknowledges that he and his staff have used personal email addresses for congressional business.
Collins’ lawyers say that’s all helpful to his case.
Citing the U.S. Constitution’s “Speech or Debate” Clause, which protects legislative business from being used in criminal proceedings, they argued in court Friday that they should be able to see any OCE material shown to the grand jury that indicted the congressman. Certain other communications may be privileged too, they said.
It’s just the latest example of Collins’ legal team citing the clause, but he’s far from the first indicted congressman to do so.
Constitutional fights about the parameters of the Speech and Debate Clause often drag out in appeals courts for months, buying indicted lawmakers extra time before they must answer for their actions.
This would come in handy for the New York Republican, who is up for reelection in 2020. As Collins himself acknowledged last month, he’d “want to see where the court case stands” before making a decision about launching his next campaign.
“If you’re the congressman, if you’re the defendant in this case, you’re in no hurry for a resolution,” Jeffrey Cramer, a former federal prosecutor, told TPM Monday. “Because there are only bad resolutions, from his standpoint. This is an extremely strong case, and the closer he comes to a court trial is the closer he gets to prison.”
At the time of his alleged insider trading, Collins sat on the board of — and was the largest shareholder in — the Australian biotech company Innate Immunotherapeutics. Prosecutors allege that when Collins found out the company’s only drug failed a major trial, he informed his son, setting off a string of insider trading violations. In fact, video footage from the 2017 White House congressional picnic appears to show Collins talking on his cell phone as the scheme first got underway.
Legislative business that took place on Collins’ and his staff’s personal email addresses, Collin’s lawyers have said, ought to be excluded from his case as a result of the Constitution’s Speech or Debate Clause. Collins’ lawyers also assert prosecutors should’ve left out a report on Collins alleged misdeeds from the Office of Congressional Ethics — because the office was established by an act of Congress, The Buffalo News reported from the courthouse Friday.
The House Ethics Committee authorized a probe of Collins in 2017 based on the Office of Congressional Ethics’ work. They re-authorized the probe earlier this month.
The committee’s chief counsel, Tom Rust, declined to comment to TPM. So did the chief counsel of the Office of Congressional Ethics, Omar Ashmawy.
It’s all part of an aggressive stance Collins has taken toward the collected evidence against him. His case is set for a February 2020 trial, but that may be delayed by the constitutional question of what a jury should be allowed to see.
Craig Holman of the advocacy group Public Citizen, who signed the good government group’s January 2017 complaint to the Securities and Exchange Commission and to OCE urging them to investigate Collins and then-Rep. Tom Price (R-GA) for insider trading, dismissed Collins’ legal maneuvering in a phone interview Monday.
“This is a startling use of the Speech or Debate Clause in order to try to get Chris Collins off the hook,” Holman said.
In reviewing Collins behavior, he said, “the Office of Congressional Ethics was not taking some official action that would result in policy, or legislation, or regulation.” The office, he added, “is merely an advisory agency.”
“This just does not work,” he said.
Meredith McGehee, the executive director of the anti-corruption watchdog group Issue One, agreed.
“Just because something happens while he was a legislator is not automatic immunity,” she said in an interview. “And the consequences of interpreting the Speech or Debate Clause to essentially have it become that would be very troubling for congressional ethics.”
Congress created the OCE, McGehee said, “but the information they provided is public information.”
Yet this appears to be the interpretation Collins’ team is pushing.
In court Friday, per The Buffalo News, Collins’ defense team “argued that the entire Office of Congressional Ethics report qualifies as protected information under the Speech or Debate Clause.”
Collins himself also said, per Spectrum News, that “probably 95 percent” of members of Congress and their staff “use personal email accounts and those accounts are protected.”
“Southern District of New York, in accessing personal email accounts, may have violated my constitutional rights,” he asserted. Per The Buffalo News, prosecutors said Friday that none of their evidence against Collins came from his congressional email accounts. The same couldn’t be said for his personal email accounts.
This eagerness to protect personal email exchanges is new for Collins, who harped relentlessly on Hillary Clinton’s use of a private email server as secretary of state. But many lawmakers before him have invoked the Speech or Debate Clause in their criminal defense.
In one memorable example, members of Congress from both parties objected forcefully when FBI agents raided the office of then-Rep. William Jefferson (D-LA) in May 2006. (In a separate search of Jefferson’s home, law enforcement found $90,000 in the freezer, tucked inside a box of Pillsbury pie crusts.) The Supreme Court ultimately let a lower court’s decision stand allowing Jefferson to review the materials seized from his office and remove privileged legislative documents.
In another case, Sen. William Proxmire (D-WI) employed the clause to defend against a libel lawsuit. The senator was sued after bestowing his “Golden Fleece Award” for wasteful government spending on a research psychologist who’d received a government grant to study why monkeys clench their jaws. Eventually, the Supreme Court found that, while Proxmire hadn’t acted with malice toward the scientist, the clause could only be used with regard to the “essential deliberation” of Congress, not including press releases or newsletters.
Still, ethics experts acknowledged that Collins’ case could affect others, given the Speech or Debate Clause’s relatively limited court history.
“The Speech or Debate Clause hasn’t been tested that often, and so courts have not very clearly defined exactly when it applies and when it doesn’t,” Holman, of Public Citizen, said. “But it does tend to focus, at this point, on official actions and legislative acts, and would not apply in situations in which a member of Congress is just trying to use the Constitution to conduct personal, illegal activities.”
The Buffalo News tallied nine members of Congress in the past 50 years who attempted to employ the Speech or Debate Clause to protect themselves from prosecution, in addition to Collins. All nine attempts failed, though Rep. Aaron Schock (R-IL) and Sen. Bob Menendez (D-NJ) were let off the hook for other reasons.
“They’re trying any argument they can because it’s a very strong case against him,” Cramer said, referring to Collins. “This is a Hail Mary pass that really has no legal basis at all.”
