U.S. v. Fraser Verrusio: Speech or Debate

Fraser Capone Verrusio

Thanks to Mike Scarcella at the Blog of Legal Times (BLT), we learn a little more about the legal wrangling in U.S. v. Fraser Verrusio:

The Justice Department and the House of Representatives General Counsel's Office are feuding over a subpoena that DOJ issued last month that seeks to compel the testimony of the chief counsel of the Senate Ethics Committee.

DOJ's Public Integrity Section gave House General Counsel Irvin Nathan an opportunity to nominate a witness to testify at a pretrial hearing June 14 in Washington federal district court. Nathan’s office declined the invitation. DOJ went ahead and issued a subpoena to John Sassaman, chief counsel and staff director to the Senate Ethics Committee.

We've scanned the 72-page Motion of John Sassaman to Quash Subpoena and attachments. The document is long on case law and skimpy on facts. BLT's story covers everything you need to know about the Motion: Mr. Sassaman, through the office of the House General Counsel, is asserting that he can not be compelled to testify about House Ethics Committee matters due to the Constitution's Speech or Debate clause.

In an April 10, 2010 letter to the Office of the House Counsel, DoJ prosecutor M. Kendall Day identified potential areas of testimony requested of a House Ethics Committee official:

1. A description of the House annual financial disclosure report, including what it is, who is required to file it, what information is supposed to be disclosed there (including in its various schedules), and where it is supposed to be filed;

2. A brief description of the House's travel disclosure form, and how that form compares to the financial disclosure report;

3. A description of the origin of financial disclosure reports, as well as the rules and requirements underlying the financial disclosure report;

4. A description of how the reports are used by various offices in the House of Representatives for administering and enforcing the disclosure, gift, and anti-gratuity rules of the House; and

5. To aid in establishing the materiality of the false statements contained on Mr. Verrusio's financial disclosure report, a response to hypothetical questions about what action the Committee might have taken if it had been presented with certain information.

The ACR Blog has taken the position that, given the historical conflicts between parliament and the crown, there is a need for the Speech or Debate clause of the U.S. Constitution. Even though some individuals (e.g. former Rep. Tom Feeney, R-Fla.) have hidden behind the Speech or Debate clause to stymie criminal investigations, we have still supported the Speech or Debate clause.

Speech or Debate Clause
U.S. Constitution; Article One, Section 6
[F]or any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.

In this particular instance, though, we're not so sure that the Speech or Debate Clause protects the legislative branch from what the Justice Department seeks. As we discussed last summer, proceedings in Congress typically have great protections. Speech or Debate privileges also apply to congressional staffers such as Mr. Sassaman. But the testimony sought by the Justice Department does not relate to any proceeding. The Justice Department merely wants a witness to discuss factual matters about forms. (The DoJ's attempt to have "hypothetical questions" answered is probably on shakier ground for more than one reason, though.)

We don't expect this aspect of Mr. Verrusio's trial to be determined in Judge Richard Roberts' courtroom. Whichever side loses will likely appeal.