WASHINGTON — Prosecutors are defending the investigation that led to the arrest of Rep. Chris Collins, answering concerns that the probe may have violated an obscure constitutional clause in a way that could complicate or upend their case.
In a letter to the judge presiding over the felony insider trading case against Collins, prosecutor Geoffrey S. Berman took issue with a friend of the court brief filed by the chief counsel of the House of Representatives. The House's top lawyer indicated that federal investigators, in digging through emails between Collins and his staff, may have violated the Constitution's "Speech or Debate Clause," which aims to protect lawmakers from harassment from other branches of the federal government.
Lawyers for Collins, a Republican from Clarence, have raised the same issue. But Berman, in a letter Friday evening to the judge in the case, said investigators did nothing wrong.
"To conclude that the searches in this case necessarily violated the Speech or Debate Clause — where they, as a worst case scenario, incidentally resulted in the collection of protected material — would impede legitimate law enforcement activities and give shelter to criminal conduct," wrote Berman, the U.S. attorney for the Southern District of New York.
Federal prosecutors rarely respond to friend of the court or "amicus" briefs filed by interested parties that are not directly involved in criminal cases.
But Berman chose to respond to House General Counsel Douglas N. Letter's court filing on the Speech or Debate Clause, in which Letter wrote: "Representative Collins’s legislative documents are his personal property, whether they are stored in a personal email or cloud account, or in a third party’s email or cloud account. Well-established precedent forecloses DOJ from end-running the Speech or Debate Clause by obtaining a member’s legislative communications from a third party."
The dust-up over the Speech or Debate clause started at a court hearing last December. It continued in February, when the Collins legal team filed a motion aiming to force the prosecution to release evidence that the defense says it needs to see to determine whether investigators violated that constitutional provision.
That clause says that 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.”
The clause is generally seen as a way to protect lawmakers from undue interference from the executive and judicial branches.
But federal appeals courts have disagreed on how broadly the clause should be read, meaning it's possible that the Collins legal team will ask that the constitutional issue be resolved before the court hears the Collins case — a move that could delay the congressman's February 2020 trial.
The Collins team got a boost when Letter, the House counsel, filed his brief with the court on April 4. In that brief, Letter sided with a federal appeals court in the District of Columbia, which ruled in 1995 that the Speech or Debate Clause bars prosecutors from even seeing congressional communications that falls “within the sphere of legitimate legislative activity."
Under that reading of the Constitution, federal investigators may have overstepped their authority if, in their probe, they accidentally scooped up some emails or other communications between Collins and his staff that deal with legislation.
But two other federal appeals courts, in Philadelphia and San Francisco, have taken a more narrow view of the Speech or Debate Clause. Those courts ruled that prosecutors can look at communications between lawmakers and their staff members, but simply can't use it as evidence in court if it deals with legislation.
Not surprisingly, Berman sided with the courts that took the narrow view of the Speech and Debate Clause, and he urged U.S. District Court Judge Vernon S. Broderick — the judge in the Collins case — to do the same if he has to rule on that matter.
Berman noted that in searching for communications between Collins and his staff members, investigators weren't looking for anything about legislation. They were looking for evidence of federal crimes.
"The searches here are far removed from the concerns that animate the Speech or Debate Clause, which the framers devised to ensure that Members 'enjoy the fullest liberty of speech,' ” Berman wrote.
Berman and Letter agreed, though, that the court doesn't necessarily have to address that constitutional matter in the Collins case — and that it shouldn't if it can resolve concerns about the Speech or Debate Clause in other ways.
"Congressman Collins will also have the opportunity to seek exclusion of any government exhibits at trial on the basis that they are covered by the Speech or Debate Clause," Berman wrote in his letter to Broderick.
Emails and other communications between Collins and his staff would be excluded from evidence if they involved legislation in any way. But if they do not, the judge could see them as fair game for use as evidence in Collins' trial because of the big exception included in the Speech or Debate Clause.
The clause offers its legal protections to lawmakers in all cases "except Treason, Felony and Breach of the Peace." And Collins stands accused of 11 felonies: seven counts of securities fraud, two counts of conspiracy, one count of wire fraud and a charge of making false statements to the FBI.
Prosecutors indicted Collins on Aug. 8. Prosecutors say the congressman called his son Cameron with inside information about the failed clinical trial of a drug made by Innate Immunotherapeutics, an Australian biotech company in which both the congressman and his son were heavily invested.
Cameron Collins and his prospective father-in-law, Stephen Zarsky of New Jersey, face similar charges in the case. Prosecutors say Cameron Collins and Zarsky dumped Innate shares to avoid losses, knowing the stock would tank once the company announced its trial results.
In his letter to the judge, Berman — the prosecutor — urged Broderick to focus squarely on the criminal case at hand and not get hung up on the precise meaning of the Speech or Debate Clause.
"Any arguable violation of the Speech or Debate Clause can be adequately remedied at trial," he said.