Former congressional staff member Fraser Verrusio doesn’t deny taking an all-expenses-paid trip to New York arranged by lobbyists. But he disputes the government’s contention that going on the trip was a crime.
Verrusio’s challenge of his conviction is playing out before the U.S. Court of Appeals for the D.C. Circuit. The case is one of the last vestiges of the Jack Abramoff scandal, a wide-ranging U.S. Department of Justice corruption probe that ensnared nearly two dozen people, including lobbyists and public officials.
Verrusio’s fight goes beyond clearing his name — it also implicates the freedom of members of Congress and their staff to keep information from prosecutors and defense lawyers. The case tests a constitutional protection afforded Congress known as the “speech-or-debate” clause. The protection can come into play when prosecutors — or defense lawyers — try to execute a search warrant or force a member of Congress or congressional staff into court to testify.
Verrusio’s lawyers want the D.C. Circuit to find that Chief Judge Richard Roberts of Washington’s federal trial court was wrong to strike a defense subpoena seeking testimony from a former congressional staff member. Verrusio argues that judges should have to balance a defendant’s constitutional rights against legislators’ or their staff’s speech-or-debate privilege.
Prosecutors argue the speech-or-debate clause’s protections are “absolute.” In an amicus brief supporting the government, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, which pursues litigation on behalf of the House leadership, described the privilege as “a fundamental pillar of Congress’s independence.”
A three-judge panel will hear the case on Nov. 12. Richard Sobiecki of Baker Botts will argue for Verrusio as pro bono co-counsel with D.C. Federal Public Defender A.J. Kramer. Kirby Heller, an appellate lawyer in the U.S. Department of Justice’s Criminal Division, will argue for the government.
No clear precedent addresses how courts should weigh the rights of criminal defendants against the speech-or-debate clause, if at all, said Kelly Kramer, who co-leads Mayer Brown’s white-collar defense practice.
“There’s nothing in the Constitution that explains how they should be balanced,” said Kramer, a lawyer for former Rep. Rick Renzi (R-Ariz.), who unsuccessfully fought prosecutors over the speech-or-debate clause. “That poses a really interesting question for the court to reconcile two explicit constitutional protections.”
WORLD SERIES TICKETS
Verrusio was policy director for the House Committee on Transportation and Infrastructure. Prosecutors accused him of taking an all-expenses-paid trip in 2003 to New York — complete with dinner, World Series tickets and a visit to a strip club — arranged by lobbyists at Sonnenschein, Nath & Rosenthal and Greenberg Traurig, where Abramoff was a partner.
Later, prosecutors said, Verrusio helped to advance amendments to a federal highway bill sought by the lobbyists’ client, construction equipment rental company United Rentals Inc. Verrusio denied any illicit arrangement, saying that, at most, the government showed he shared information with United Rentals’ lobbyists that was already publicly available on the legislative process.
A federal jury in February 2011 found Verrusio guilty of accepting illegal gifts in exchange for helping United Rentals, and of failing to report the New York trip as a gift. Roberts sentenced him to one day in jail and two years of supervised release.
On appeal, Verrusio argued in briefs that the government failed to show he used his position to influence policy or accepted the trip with the understanding that he would help United Rentals. He also challenged the charge related to his financial disclosure report.
Moreover, he argued that Roberts was wrong to quash his subpoena for testimony from Vivian Moeglein, legislative director for another member of the transportation committee at the time. Moeglein, Verrusio claimed, would have testified that Verrusio hadn’t tried to influence decisions about the highway bill. Moeglein successfully asked Roberts to toss the subpoena, citing the speech-or-debate clause.
Roberts should have weighed Verrusio’s constitutional right to put on a defense against Moeglein’s privilege, Verrusio’s lawyers contend. Once Roberts struck the subpoena, Verrusio said, the judge should have dismissed the indictment because of the denial of “material evidence.”
Prosecutors contend the appeals court shouldn’t reach Verrusio’s challenge because he failed to pursue it in the trial court. The government also dismissed Verrusio’s claim that Moeglein’s testimony would have significantly aided his defense.
If the D.C. Circuit does reach the issue, the government said in its brief, the court should find that the privilege was “absolute” and that nothing in the case law supports any balancing test. The bipartisan House legal advisory group contended in its brief that the privilege “safeguards the independence of the Legislative Branch.”
The government could find at least one sympathetic ear on the circuit panel. In a 2009 opinion, Judge Brett Kavanaugh urged the court to protect the speech-or-debate clause as a “robust shield” for the legislative branch. That case involved a grand jury subpoena, so Kelly, who isn’t involved in Verrusio’s defense, said it wasn’t clear how Kavanaugh might approach Verrusio’s arguments.
Chief Judge Merrick Garland and Judge Judith Rogers are also on the panel.
Contact Zoe Tillman at firstname.lastname@example.org.