WASHINGTON – For generations, lawyers representing indicted members of Congress have tried to turn an obscure clause in the Constitution into a get-out-of-jail-free card for their clients.
Now, attorneys for Rep. Chris Collins, a Clarence Republican indicted on federal insider trading charges, appear to be doing the same.
But this strategy hasn't worked in the past. Not one indicted lawmaker in the past 50 years won freedom because federal investigators violated the Constitution's "Speech or Debate Clause."
The clause aims to protect members of Congress from improper abuse from the other branches of government.
In practice, though, many endangered lawmakers have used the Speech or Debate Clause as the basis for a judicial rope-a-dope strategy that only delayed their convictions, sometimes for years.
Will that happen to Collins, too? Some think so.
Collins' trial is set to start next Feb. 3 in Manhattan, but Kerry W. Kircher – who spent more than five years as the chief counsel for the House of Representatives – has doubts about that trial date.
"This thing probably won't be able to be tried next February if they are going to go down this Speech or Debate route," Kircher said. "This probably will take time."
One reason: 230 years after the Founding Fathers wrote the Speech or Debate Clause, the federal courts still have not agreed on what it exactly means.
A protection from tyrants
Monarchs routinely harassed and intimidated members of Parliament in old England. And that fact led to a line of legal reasoning that protects members of the British Parliament – and the U.S. Congress – to this day.
Parliament passed a Bill of Rights in 1689 that guaranteed free-speech rights for its members. Schooled in the British legal system and wary of tyrants, America's Founding Fathers adapted that free-speech guarantee for lawmakers and included it in the Constitution they wrote in 1789.
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 Founders wrote.
The federal courts have come to read that clause as a three-pronged protection for lawmakers that goes way beyond free speech.
First, the clause means that members of Congress can't be sued or arrested for their "legislative acts" – anything that touches on lawmaking.
Second, the clause means that any material written or collected during the legislative process cannot be used as evidence against members of Congress.
And third, the courts have found that the clause contains a "testimonial" protection, one that bars law enforcement from questioning lawmakers and their staffers about legislative matters.
One federal appeals court even viewed that testimonial protection as one that blocks investigators from rifling through a lawmaker's files or communications without permission. That is what Collins' lawyers say happened in the case against him.
That all adds up to a lot of cover for lawmakers, but it's there for good reason, Kircher said.
"Our liberties, yours and mine, depend to some degree on the existence of this clause and the vigorous enforcement of this clause," he said. "We should all want our members in Congress to be independent, and to not operate under the fear of intimidation or retaliation of some sort by the executive."
To hear Chris Collins' lawyers tell it, he didn't do anything wrong – but the lawyers contend the FBI agents and prosecutors who investigated him did.
"Evidence already indicates that the government's investigation and prosecution have violated Congressman Collins' privileges under the Speech or Debate Clause," Collins defense lawyers Jonathan B. New and Jonathan R. Barr wrote in a court filing in February.
That court filing lists ways in which the defense thinks investigators trampled on Collins' Constitutional rights by sweeping up protected materials associated with lawmaking:
• They obtained search warrants that allowed them to access email accounts and other electronic communications of Collins' staffers.
• They interviewed Collins' staffers and former staffers without consulting with the House's general counsel, who has since raised concerns about the matter.
• They included in their indictment references to a separate Office of Congressional Ethics investigation, and may have used evidence from that probe to persuade the grand jury to indict Collins.
"Consequently, there is significant reason for pause and cause for concern about taint with respect to the investigation and grand jury proceedings," the Collins lawyers wrote.
"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 Geoffrey S. Berman, the U.S. attorney for the Southern District of New York, in an April court filing.
That disagreement is likely to slow the Collins case to a crawl.
The Collins defense team has filed a motion that aims to force prosecutors to turn over way more evidence. Collins' lawyers want to review that material to see if it ought to be protected by the Speech or Debate Clause.
U.S. District Court Judge Vernon S. Broderick tentatively set a court hearing for this Friday where he will consider that motion. If he turns it down, Collins' lawyers can appeal, first to the U.S. Court of Appeals for the Second Circuit, then to the Supreme Court.
Meantime, Collins' lawyers hinted in an April 4 court conference that they may ask the judge to dismiss the case on the grounds that the evidence was gathered in violation of the Speech or Debate Clause.
If the judge disagrees, the Collins defense team can appeal that decision, too.
All of that legal jousting must end before the case goes to trial.
The Speech and Debate Clause "does enable you to delay things quite a bit," said Michael Stern, who served as senior counsel to the House from 1996 to 2004.
That's why some legal experts think Collins' trial will have to be pushed back – perhaps even until after the 2020 election.
Collins won his bid for re-election while under indictment last year, and if his trial is delayed, he could, if he chooses, run for re-election a second time with criminal charges still hanging over his head.
A common defense
Accused of passing an inside stock tip to his son, Chris Collins actually has something in common with the congressman charged with using federal funds to model his office after "Downton Abbey," as well as the congressman found guilty of storing bribe money in his freezer.
All three, and plenty of other federal lawmakers who have been indicted over the decades, sought shelter under the Speech or Debate Clause.
The most recent to do so before Collins was former Rep. Aaron Schock, the Illinois Republican with a thing for "Downton Abbey," who was charged with misusing federal funds to fund his lavish lifestyle. But Judge Frank H. Easterbrook, a Kenmore native who sits on the U.S. Court of Appeals for the Seventh Circuit in Chicago, noted a harsh truth about these cases while turning down Schock's appeal.
"Charges of the kind brought against Schock have featured in criminal prosecutions of other legislators, and Speech-or-Debate defenses to those charges have failed," Easterbrook wrote last year.
That's for sure. A review of criminal cases against members of Congress found that in the last half-century, Collins is at least the 10th to cite the Speech or Debate Clause in their defense. Seven of the 10 got convicted. The two that did not – Sen. Robert Menendez, a New Jersey Democrat, and Schock – went free for reasons that had nothing to do with the Speech or Debate Clause.
So what good is this clause, then, from a defense attorney's standpoint?
For one thing, it buys indicted members of Congress time that they can enjoy in the comfort of their homes. For proof, just look at the timelines of these federal court cases where lawmakers raised Speech or Debate issues:
• Then-Rep. Rick Renzi, an Arizona Republican, got hit with extortion, conspiracy, insurance fraud and money laundering charges in February 2008 and finally got convicted in June 2013.
• The IRS and FBI began probing the finances of then-Rep. Chaka Fattah Jr. in March 2013. The Pennsylvania Democrat was convicted three years and three months later.
• FBI agents raided Schock's ruby-red congressional office in June 2015 – and prosecutors settled their case with him this March.
Renzi even continued pursuing "Speech or Debate" appeals after his conviction. The Supreme Court rejected his last such appeal in late 2017, nearly a decade after his arrest.
Why would he keep appealing? On the off chance that the Supreme Court will finally decide exactly what the Speech or Debate Clause means.
An open question
The feds didn't just raid then-Rep. William Jefferson's cash-filled freezer when they began investigating his relationship with a Kentucky-based IT firm in 2006.
They raided the Louisiana Democrat's Capitol Hill office, too.
That raid opened a gaping question in the case law surrounding the Speech or Debate Clause: Can federal officers search a lawmaker's offices or email accounts for signs of criminality if they redact any information that involves lawmaking in any way?
The appeals court in the District of Columbia, ruling in the Jefferson case in 2007, said no.
"We hold that a search that allows agents of the Executive to review privileged materials without the Member's consent violates the Clause," the D.C. appeals court said.
The ruling did nothing to stop the lower court from finding Jefferson guilty of bribery, but it opened a conflict in the federal courts.
Two other U.S. appellate courts, in Chicago and Philadelphia, quickly disagreed with the D.C. ruling, saying the clause allows investigators to sort through a lawmaker's files or communications so long as they don't use any material associated with lawmaking.
While the Constitution protects legislative material, "the Supreme Court has made equally clear that the Speech or Debate Clause 'does not make Members of Congress supercitizens, immune from criminal responsibility'," the appeals court in Chicago ruled.
What does this disagreement among the federal appeals courts mean for the Collins case?
It's difficult to say.
The Manhattan court where Collins is set to be tried is in the Second Circuit, which has never ruled on a Speech or Debate Clause case.
Only time will tell who will decide the Speech or Debate question in the Collins case. It could be the judge in the Collins case, the Second Circuit Court of Appeals or the highest court in the land.
That would likely delay its outcome for years, legal experts said.
Why might the justices opt to hear Collins' Speech and Debate argument? Because there's a conflict on the clause's meaning.
Resolving such conflicts is one of the main reasons the high court agrees to hear cases, noted Jonathan Manes, an assistant clinical professor of law at the University at Buffalo.
"It strikes me," Manes said, "that if this ends up being a key issue in the Collins case, then that's the kind of issue the Supreme Court might be interested in looking at."
Eight lawmakers who tried to use Speech or Debate Clause
• Sen. Daniel Brewster (D-Maryland): Convicted in 1972. He cited the clause in his defense against bribery charges, but the Supreme Court said lawmakers are not “super-citizens, immune from criminal responsibility.”
• Rep. Dan Rostenkowski (D-Illinois): Pleaded guilty in 1996. He argued that the clause protected his decision to use federal funds to pay for personal services, but federal judges disagreed.
• Rep. William Jefferson (D-Louisiana): Convicted in 2009, he served five years in prison for taking bribes. But an appeals court in Washington said FBI agents violated the clause when they raided his D.C. office.
• Rep. Rick Renzi (R-Arizona) “Speech or debate” appeals delayed his case for years. Indicted on corruption charges in 2008, he was convicted in 2013 and spent three years in prison.
• Rep. Chaka Fattah (D-Pennsylvania): Convicted in 2016, two years after his indictment. An appeals court ruled the clause didn’t protect him from money laundering and racketeering charges.
• Sen. Bob Menendez (D-New Jersey): Conspiracy and bribery charges against him were dropped in 2018, nearly three years after his indictment. Failed “Speech or Debate” appeals delayed his trial.
• Rep. Aaron Schock (R-Illinois): Charged in 2016 with misusing office funds, he said the FBI violated the clause when it “wired” his employees. Courts disagreed, but prosecutors dropped the charges this year for other reasons.
• Rep. Chris Collins (R-New York): Faces insider trading charges. His lawyers say the FBI may have violated the clause by searching staff emails. As a result, they may try to get evidence quashed or the case dismissed.