Lawyers for a former U.S. House of Representatives staff member say their client is in danger of not getting a fair trial because a clause in the Constitution that protects legislative documents.
The clause, which relates to speech or debate in Congress, is typically helpful for lawmakers and their staff who are trying to ward off investigations by the U.S. Justice Department. That’s because the clause, when construed broadly, prohibits them from being “questioned” outside the legislative branch, and the Justice Department is part of the executive branch.
But for Fraser Verrusio, the speech or debate clause has made it more difficult to get copies of e-mails from his old job at the House Transportation Committee. His lawyers say they’re not sure what the e-mails might say, but they want to review the messages.
Verrusio’s case grew out of the investigation into disgraced former lobbyist Jack Abramoff. Verrusio is accused of making a false statement when he omitted gifts — including a World Series ticket — from the financial disclosure form required of congressional staffers. He is scheduled to go on trial as soon as next month.
Lawyers for the House of Representatives have turned over to the Justice Department some of Verrusio’s e-mails, while still noting the House’s privilege under the speech or debate clause. But the House has not turned over all the e-mails it has recovered, and DOJ prosecutors say there are 6,229 e-mails total.
Verrusio’s lead attorney, Joshua Berman, said today that DOJ prosecutors have not tried hard enough to get copies of all the e-mails. At a hearing in U.S. District Court for the District of Columbia, Berman accused the prosecutors of having a cozy relationship with the House lawyers and even violating their discovery obligations under Brady v. Maryland.
“There’s a real dialogue going on between the House and the government lawyers,” said Berman, a partner at Katten Muchin Rosenman. Adding that the two sets of lawyers talk informally by phone, Berman called them “colleagues” of each other.
Justin Shur, a trial attorney in DOJ’s Public Integrity Section, responded that Berman is mischaracterizing DOJ’s relationship with the House lawyers. He said House lawyers have denied at least one DOJ request for information for the Verrusio case.
U.S. District Judge Richard Roberts ruled that the DOJ prosecutors did not violate their Brady obligations because they don’t have control over the e-mails the House possesses. But he did order the prosecutors and Verrusio’s lawyers to make a new, joint request of the House for the 6,229 e-mails.
“The goal here is to try to get a response from the House,” Roberts said. He added later, “How they’re going to answer it, I don’t know, but we need to find out as soon as we can.”
Shur, for one, was not optimistic about getting the e-mails. The House’s “knee-jerk reaction,” he said, has been to assert privilege under the speech or debate clause, and the new request could be seen as a “fishing expedition.”
Irvin Nathan, the House’s general counsel, did not immediately respond to a request for comment today. But in an Oct. 7 letter to lawyers in the case, Nathan wrote that the House Transportation Committee has “retained the protections” of the speech or debate clause with regard to Verrusio’s e-mails, even though it has provided some e-mails to the Justice Department.
Nathan also wrote: “Neither the House nor the Ethics Committee is part of the prosecution team in this matter, and the documents as to which the Committee asserts Speech or Debate protection are not available to the Department of Justice.”
Footnote: The speech or debate clause has come up previously in the Verrusio case, regarding a DOJ attempt to find a witness who can testify about the House's financial disclosure forms.