NEW YORK — It took only 45 minutes in a Manhattan courtroom Tuesday to spell out what lies ahead in the case against Rep. Chris Collins and others — a long and complicated slog.
The Republican congressman from Clarence was excused from attending Tuesday’s “status conference” in lower Manhattan’s Thurgood Marshall U.S. District Courthouse — the first proceedings since he was re-elected to a fourth term in November following his Aug. 8 indictment on insider trading charges. But the session before U.S. District Judge Vernon Broderick provided a significant glimpse into the next 13 ½ months before the Collins trial begins on Feb. 3, 2020.
Already, lawyers for Collins and his co-defendants (Cameron Collins, his son; and Stephen Zarsky, his son’s prospective father-in-law) are scheduling dates as far out as August to argue motions expected to enter into the case. The issues range from potential impacts of an obscure constitutional clause called “speech or debate” to the relevance of a separate investigation launched by the U.S. Securities and Exchange Commission into Collins’ investments in an Australian biotech company.
And both sides say they will spend lots of time on the preliminaries so that there are no big surprises at trial.
“I don’t want us to proceed down a path… where the defense does not know the scope of production to receive,” Broderick said Tuesday, referring to what may prove to be reams of “discovery” evidence on which both sides will build their cases.
At this early point, however, the congressman appears to pin much of his defense strategy on the Constitution’s “speech or debate” provision, signaling he thinks he may enjoy at least some special protection as a member of Congress.
“Rep. Collins wrote the Government regarding materials obtained or reviewed by the Government in the course of its investigation that, in the view of Rep. Collins, are potentially protected by the Speech or Debate Clause of the Constitution,” Collins' attorneys wrote in pre-conference filings. “Rep. Collins requested the production of additional documents and information necessary to assess whether there have been any violations of his constitutional privileges.”
The cited clause states that all members of Congress “shall in all Cases, except Treason, Felony and Breach of the Peace be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
Constitutional scholars have traditionally seen the clause as a way to prevent the executive branch from arresting a member of Congress on a pretext, to prevent that member from voting or taking other actions.
Defense lawyers on Tuesday did not promise to use the concept at trial, but did tell Broderick they need to know at this point if it could be an issue.
“This is a discussion to see if any… issue or some things give us pause,” said Collins attorney Jonathan B. New, pointing to numerous emails between current and former congressional staffers and possibly the congressman, too.
But that evidence could prove inadmissible, he added, if covered under the “speech or debate” clause.
“We have to make sure they do not infringe on those constitutional protections,” New said, adding that his concerns include the Office of Congressional Ethics, which launched its own internal investigation of Collins before his Aug. 8 indictment.
“Which gives us concern they may have come across areas and materials they are not allowed to obtain,” New added, referring to the congressional office. “There are some communications that could be covered by the speech or debate clause.”
And though he stressed he is making his requests only to obtain answers, New cautioned that anything violating the clause could improperly “taint a grand jury.”
“We don’t know if that happened here,” he said.
But that argument is already drawing strong pushback from prosecutors, who seemed on Tuesday to dismiss the entire “speech or debate” theory.
“The case has nothing to do with speech or debate,” said prosecutor Max Nicholas. “From our perspective, there is no ‘there’ there.”
Lawyers for both sides are expected to submit briefs in February and March on a host of other preliminary issues, including the admissibility of various FBI interview transcripts and information gleaned in the course of the SEC probe.
Collins' attorneys maintain the SEC investigated the case in conjunction with the Justice Department, while prosecutors label the SEC probe a separate and civil action.
Federal prosecutors charged the Clarence Republican with fraud, conspiracy and lying to an FBI agent in connection with an alleged insider trading scheme. Lawyers familiar with such offenses said that if convicted, Collins would likely have to serve a prison term of up to eight years.
It all resulted from an alleged chain of illegal insider stock trades that prosecutors say Collins started with a cellphone call from the White House lawn during the June 2017 congressional picnic. Prosecutors allege that Collins illegally shared inside information about Innate Immunotherapeutics, an Australian biotech company, that allowed his son and Zarsky to sell their stock in the firm before news of a failed drug trial became public, thereby avoiding huge losses. The congressman served on Innate's board for years until this spring.
All through the case Collins has maintained his innocence and predicts he will be cleared at trial. He also made that argument in his fall re-election campaign against Democrat Nate McMurray, which he won by about 1,000 votes.