NEW YORK — Like Hillary Clinton, Rep. Chris Collins used a private email account to do public business — and now, his lawyers are using that fact to defend him against insider trading charges.
In addition, the Collins legal team sees an Office of Congressional Ethics investigation of the Republican congressman from Clarence not as a problem, but as part of his defense.
Those lawyers also argue that the U.S. Constitution's "Speech or Debate" clause shields documents that might, to the average person, seem like criminal evidence — like a Collins staff memo outlining how legislation could affect a company in which he was the largest shareholder.
Those counterintuitive defense arguments spilled out over the course of a two-hour court hearing here Friday in the criminal case against Collins, his son Cameron and Stephen Zarsky, Cameron Collins' prospective father-in-law.
The three men face charges of fraud, conspiracy and lying to the FBI, but Friday's hearing made clear that Collins' lawyers think the Speech or Debate clause will provide an effective defense against most, if not all, of those charges.
That clause says members of Congress "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."
Federal courts have interpreted that clause broadly, saying that it protects any congressional communications or documents dealing with lawmaking in any way from being used as criminal evidence.
That includes any legislative business that Collins or his staff transacted via private email accounts, his lawyers argued Friday.
"His staff does sometimes use personal devices for various things," and those things should be off limits to prosecutors if legislation was discussed on those personal accounts, Collins' lawyer Jonathan B. New argued.
Both the judge and the prosecution reacted with surprise, not because Collins and his team was doing public business over private channels, but because the House has no rules prohibiting that.
U.S. District Court Judge Vernon S. Broderick said the House should consider such a policy.
"I'm talking about security," Broderick said, noting that private email servers could be easier to hack than public ones.
Collins and his staff apparently used personal email accounts extensively. Scott A. Hartman, the assistant U.S. attorney prosecuting the Collins case, told the court Friday that none of the evidence in the case came from congressional email accounts — but that some came from private ones.
That revelation comes three years after Clinton, the 2016 Democratic presidential nominee, found herself under attack from Collins and other Republicans for using a private email server as secretary of state.
"This just shows again the absolute poor judgment that Hillary Clinton has shown for her 30 years in the public," Collins said on CNN in October 2016.
The revelation about Collins' private emails was by no means the only ironic turn during Friday's hearing.
In October 2017, the Office of Congressional Ethics found it had "substantial reason to believe" that Collins violated federal law by using inside information to tout the stock of Innate Immunotherapeutics, an Australian company where he was the largest shareholder.
Collins rejected that conclusion at the time — but, on Friday, his lawyers used the existence of that ethics report as a key prong in his defense.
Prosecutors cited that ethics report in their August 2018 indictment of Collins and his co-defendants, but the Collins defense team argued that the entire Office of Congressional Ethics report qualifies as protected information under the Speech or Debate clause. Congress created the ethics watchdog, and that very fact makes everything the ethics office does a protected legislative matter, they said.
That being the case, the defense said the ethics report never should have been mentioned in the indictment. Because it was, they said, the grand jury that indicted Collins might have been tainted by that inadmissible evidence.
The prosecution countered by noting that ethics report only rates a casual mention in the indictment, which includes plenty of other evidence against Collins and his co-defendants.
"It's just not true that the (the ethics report) is a pillar of the case," Hartman, the prosecutor, said.
Private emails and the ethics report are by no means the only potential evidence shielded from use by the Speech or Debate Clause, the Collins lawyers argued.
Documents can be protected, too — even a document that discusses legislation that would affect Innate.
Prosecutors allege that Collins — an Innate board member — got an email from the company president in June 2017 containing bad news. The company's one product, a multiple sclerosis drug, had failed in clinical trials.
The indictment indicates that Collins then called his son, who started dumping his Innate shares and told others to do the same.
Even so, defense lawyers argued that one Collins staff document in the case clearly must be protected under the Speech or Debate clause. New, the Collins attorney, described that document as "some sort of talking points about legislation that might affect Innate."
Collins' attorneys think there might be more such legislative information that can't be used as evidence thanks to the Speech or Debate clause, and Friday's hearing was on their motion to try to force prosecutors to turn over more such evidence.
Broderick, the judge, said he plans to rule on that motion this summer.
That would only be the beginning of the debate on the Speech or Debate clause. Collins' lawyers then would have the opportunity to file a motion seeking to dismiss counts of the indictment based on that constitutional clause.
That could delay the trial in the case, which is set to begin next Feb. 2. But the judge made clear he doesn't want that to happen.
"I want to make sure this case moves forward," he said.