The idea of splitting Rep. Chris Collins' criminal trial in two – with his son facing jurors before he does – came as a complete surprise to the Clarence lawmaker's defense team.
And his top lawyer is not at all happy about it.
"The proposed approach would involve at least twice as much of the court’s time and resources, two juries, additional defense expenses (particularly for the second trial team), and at least twice the resources from the government," said Collins' chief lawyer in the insider stock trading case, Jonathan R. Barr, in a letter late Friday.
Barr wrote to U.S. District Court Judge Vernon S. Broderick in response to the proposal prosecutors put forth in a letter to the judge a few days earlier, in which they said Collins' own defense tactics might make it better to split the trial in two.
Collins is alleging that prosecutors have violated his rights under the Constitution's "Speech or Debate" clause, which aims to protect lawmakers' legislative activities from undue interference from the other branches of government.
Since any pre-trial rulings regarding that constitutional clause can be appealed all the way to the Supreme Court, the Collins defense tactics could force a delay in the trial, currently scheduled for Feb. 3, 2020.
That being the case, prosecutors have proposed that Collins' alleged accomplices in an insider trading scheme – his son Cameron and Stephen Zarsky, Cameron Collin's future father-in-law – go to trial as scheduled in February. The congressman's trial would then be delayed to an undetermined future date.
"Because of the strong public interest in seeing the facts of this case adjudicated as soon as possible, the government is prepared to proceed to trial against Cameron Collins and Stephen Zarsky in February 2020," wrote Geoffrey S. Berman, U.S. attorney for the Southern District of New York.
Prosecutors say they can move forward with the case against Cameron Collins and Zarsky because the Speech or Debate Clause offers no legal protection to them, since they are not members of Congress.
Berman made clear, though, that splitting the trial in two would not be the prosecutors' preferred choice.
In hopes that the Republican congressman will exhaust all his pre-trial appeals before the February trial date, prosecutors also proposed a new, accelerated schedule for motions in the case.
But Barr, Collins' top lawyer, vehemently objected.
"The government’s unilateral request without conferring with defense counsel to dramatically change the current motion schedule based upon its own arbitrary desired deadline is premature and puts the cart before the horse," Barr wrote in his letter the judge.
Rep. Collins stands accused of launching a series of illegal stock trades based on inside information he got regarding a company where he served on the board: Innate Immunotherapeutics, an Australian biotech.
Federal prosecutors in Manhattan say that Collins got an email from Innate's CEO while attending a White House picnic in late June 2017. The mail included devastating news. Innate's only product, an experimental drug for multiple sclerosis, had failed in clinical trials in Australia and New Zealand. That meant its stock was destined for a big drop.
The congressman – Innate's largest shareholder at the time – could not sell any of his shares because they were held in Australia, where there was a hold on trading of the company's stock. But prosecutors say Collins quickly called his son, who started dumping his Innate shares on the U.S. over-the-counter market, where trading continued. Prosecutors say that move shielded Cameron Collins from $570,900 in potential losses.
Government lawyers also say Cameron Collins told Zarsky about Innate's bad news, prompting him to start selling his Innate shares, too, thereby saving himself from $143,900 in losses.
The three men are charged with fraud, conspiracy and lying to the FBI, and each could be sentenced to several years in federal prison if convicted.
Rep. Collins has built his defense on the charge that prosecutors trampled on his rights under the Speech or Debate Clause. They have been particularly upset that the original indictment in the case included a reference to a separate Office of Congressional Ethics investigation of Collins' relationship with Innate and that the indictment referred to communications between Collins and his press secretary at the time.
Hoping to dodge the Speech or Debate issue, prosecutors narrowed the charges against Collins in a new indictment issued in early August. That new indictment omits any mention of that separate congressional investigation or that email exchange between Collins and his spokeswoman.
Those changes did nothing to satisfy Collins' lawyers. They still want Broderick, the judge, to rule on an outstanding motion that aims to force prosecutors to turn over more evidence to the defense team, which wants to see if that evidence shows the government violating the congressman's Speech or Debate rights.
If Broderick rejects that motion, prosecutors can appeal the decision before the case can go to trial.
The Collins defense team is also expected to file a motion asking Broderick to dismiss the case, again based on the allegation that prosecutors interfered with the constitutional clause that aims to shield Collins' lawmaking duties from undue interference. That motion, too, could also be appealed all the way to the nation's highest court.
All of this has put the Feb. 3, 2020, trial date in jeopardy, potentially moving it closer to – or even until after – the June Republican primary or the November election. Collins, who has not yet decided whether to run for a fifth term in Congress, already faces three potential challengers for the GOP congressional nomination in New York's heavily Republican 27th congressional district.
Broderick will decide where things stand with the trial date – or trial dates – and the pre-trial motions schedule. The judge's decisions on those matters could come as early as Thursday, when a conference in the case is scheduled to take place in federal court in Manhattan.