The House bipartisan legal advisory committee this week stepped into the middle of a criminal case against a former congressional staffer who was convicted on public corruption charges, asking a federal appeals court to uphold a barrier that can keep legislative information out of the hands of prosecutors and defense lawyers.
The former official, Fraser Verrusio, wants the U.S. Court of Appeals for the D.C. Circuit to overturn his conviction. Part of Verrusio's argument: the trial judge unfairly refused to allow a House aide to testify. (Verrusio was convicted on charges that included accepting gifts in exchange for official acts.)
The judge, Richard Roberts of Washington's federal trial court, citing protections typically accorded to lawmakers under the constitution's "speech or debate" clause, quashed the subpoena that Verrusio's attorneys served in January 2011. The clause provides a shield around the "legislative sphere"—potentially blocking prosecutors and defense attorneys from acquiring and using certain pieces of information.
Verrusio's attorneys, including Richard Sobiecki of Baker Botts in Washington, contend in the appeal that the speech-or-debate clause doesn't provide absolute protection against information disclosure and trial testimony when it comes to a criminal defendant's constitutional rights. On the other side, the House legal committee this week, in a brief filed in the appeal, said the protections are indeed absolute and that there shouldn't be any effort to strike a balance between the clause and Verrusio's rights.
The legal committee, represented by the U.S. House of Representatives general counsel's office, told the appeals court in the brief that the clause protects "informal information-gathering by members of Congress and their aides, as well as information-gathering that takes place through more formal congressional means."
The U.S. Supreme Court, the House brief said, "has drawn no distinction between the criminal and civil contexts. The Supreme Court has acknowledged the potential costs associated with this very broad constitutional protection."
The House brief, filed by assistant counsel Eleni Roumel of the House general counsel's office, said "no court, anywhere, that has held that the protections of the Speech or Debate Clause are subject to being balanced against the rights of a criminal defendant who seeks access to legislative information."
Those courts "that have considered the efforts of criminal defendants to obtain such access have rejected them—unanimously," the House brief said.
Verrusio's attorneys said in their opening brief in the D.C. Circuit that the would-be testimony from Vivian Moeglein, a former aide to then-Representative John Boozman (R-Ark.), was intended to show that Verrusio had not been asserting pressure to get certain language included in a transportation bill. (Boozman is now a senator.)
Verrusio's had "no substantive role or influence in the legislative drafting process, casting doubt on the idea that anyone familiar with Mr. Verrusio's job responsibilities would have ever thought he could or would act to insert amendments into a bill."
The subpoena request, the defense attorneys said, doesn't involve any "official information gathering"—that is, say, information gathered for or presented at a congressional hearing.
"A criminal defendant's right to present relevant, material evidence should always trump the protections provided by the Speech or Debate Clause," Verrusio's attorneys said in court papers in the appeal.
Verrusio, a former policy director for the House Committee on Transportation and Infrastructure, was sentenced in August 2011 to spend a few hours in custody inside the U.S. federal district courthouse in downtown Washington.
Verrusio's next court papers in the dispute are due in early March. The D.C. Circuit hasn't yet set an argument date.