Five months after a jury convicted Sen. Bob Menendez of corruption-related charges that ended his political career, federal prosecutors have admitted to a series of errors that could upend the verdicts.
The missteps have handed Menendez’s attorneys just the kind of opening they’d been looking for, and they have already requested a new trial. If they get their way, Menendez could beat federal charges once again — a remarkable prospect given the stash of gold bars and piles of cash used as evidence against him….
In several surprise legal filings since mid-November, prosecutors from the Southern District of New York revealed they had inadvertently given the jury access to evidence a judge ruled jurors should not see.
The evidence at issue was loaded onto a laptop the jury was given during its deliberations. Prosecutors have said it’s “vanishingly unlikely” and unreasonable to think any juror actually poured through all the documents on the laptop and came across the tainted material, which amounts to scraps of unredacted text messages amid 3,000 often lengthy documents.
The biggest problem for prosecutors is that some of the material was evidence that U.S. District Court Judge Sidney Stein ruled could not be shown to jurors without treading on a form of immunity given to members of Congress by the Constitution’s “speech or debate” clause.
Speech or debate privileges are mostly impenetrable in investigations relating to the official duties of lawmakers, their aides or other congressional officials.
“If you breach it, the only remedy is to dismiss the indictment or give this guy a new trial,” said Stan Brand, a former counsel to the House of Representatives who argued speech or debate issues before the Supreme Court….
Category Archives: Speech or Debate Clause
“Trump says members of Jan. 6 committee should be jailed”
In his first post-election TV interview, on NBC.
In case you’re wondering, this is not, nor should it ever be confused with, normal. At least, not in a democracy.
“Prosecutors say they mistakenly gave jurors access to evidence in Menendez case”
Jurors in former Sen. Bob Menendez’s corruption trial had access to evidence they should not have seen, federal prosecutors disclosed Wednesday in a surprise legal filing.
During Menendez’s two-month corruption trial, a federal judge ruled that certain evidence could not be shown to jurors without treading on a form of immunity given to members of Congress.
But some of that evidence was inadvertently loaded without redactions onto a laptop that jurors were given for their few days of deliberations. Menendez resigned this summer after jurors found him guilty of bribery, acting as a foreign agent, obstruction of justice, extortion and conspiring to commit those crimes.
Federal prosecutors from the Southern District of New York said Wednesday that portions of the exhibits at issue would have been “meaningless and impenetrable” if a juror had seen them. One of the things that should have been redacted was a text message with a web address to a CNN article and the CNN logo, for instance, both of which would only have been found amid a lengthy spreadsheet-like exhibit summarizing the government’s evidence in the case.
Plus, prosecutors said, it’s “vanishingly unlikely” that any of the 12 jurors actually saw the evidence anyway. The jury’s laptop contained some 3,000 exhibits, many of them similarly lengthy and dense…
The 11-page letter to District Court Judge Sidney Stein argues even if a juror had seen the evidence, “no action need be taken in light of the error.” Prosecutors cited other court cases to support that argument and also noted that defense attorneys could have caught the error before jury deliberations began but did not.
“Judge rules Menendez’s prosecutors can’t show ‘critical’ evidence”
Jurors in Sen. Bob Menendez’s corruption case cannot see evidence prosecutors have called “critical” to part of their case, a federal judge ruled Friday.
The decision puts a hole in prosecutors’ ability to prove their central claim: that the New Jersey Democrat took bribes to help send billions of dollars of American military aid to Egypt.
U.S. District Court Judge Sidney Stein said prosecutors could not use evidence they hoped would show Egyptian officials were “frantic about not getting their money’s worth,” despite bribes Menendez allegedly took to help the country access billions of dollars of American military aid and arms.
Stein found the Constitution’s “speech or debate” clause does not allow prosecutors to show jurors the evidence. The clause grants members of Congress a form of immunity that is mostly impenetrable in investigations relating to the official duties of lawmakers, their aides or other congressional officials.
Coincidentally, Stein based his order on a 1979 Supreme Court case about another New Jersey Democrat accused of corruption. In that case, the high court ruled the speech or debate clause barred prosecutors from introducing certain evidence against Rep. Henry Helstoski, who had been accused of accepting bribes.
Iowa Supreme Court unanimously finds legislative privilege extends to election law dispute
From the introduction of Justice Dana Oxley’s opinion for the Court in Smith v. Iowa District Court for Polk County:
In an effort to support its constitutional challenges to recent legislative changes to voting procedures, the League of Latin American Citizens of Iowa (LULAC) served subpoenas on several Iowa legislators, seeking discovery of communications the legislators had with third parties related to enactment of the legislation. The legislators, who were not parties to the underlying litigation, objected to the subpoenas, LULAC filed a motion to compel, and the district court granted the motion in part. The nonparty legislators filed a petition for writ of certiorari, arguing they are protected from compelled document production by a legislative privilege under the Iowa Constitution.
This certiorari proceeding presents our first opportunity to address whether the Iowa Constitution—which lacks a speech or debate clause—nonetheless supports a legislative privilege that protects Iowa legislators from compelled production of documents related to the passage of legislation. The district court concluded that the Iowa Constitution provides a privilege, but the privilege is conditional rather than absolute. It then concluded that compelling, competing interests—specifically LULAC’s claims that the legislation amounts to unconstitutional viewpoint discrimination—require piercing the privilege with respect to most of the documents sought in the underlying litigation.
We now hold that the Iowa Constitution contains a legislative privilege that protects legislators from compelled document production and that the privilege extends to communications with third parties where the communications relate directly to the legislative process of considering and enacting legislation. However, we need not, and therefore do not, decide whether the legislative privilege is absolute or qualified. The district court applied the wrong analysis when it relied on gerrymandering cases, where some courts hold that “judicial inquiry into legislative intent is specifically contemplated as part of the resolution of the core issue that such cases present.” Bethune-Hill v. Va. State Bd. of Elections, 114 F. Supp. 3d 323, 337 (E.D. Va. 2015). The district court should have considered the underlying claims—which challenge changes to the voting procedures as violating individual voters’ constitutional rights—through the lens of the Anderson-Burdick balancing test. See Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992). That test balances the “character and magnitude” of the injury to the individual voters’ rights against the state’s justification for the changes, Anderson, 460 U.S. at 789, neither of which turn on legislative intent. Therefore, the individual legislators’ intent has little, if any, relevance to LULAC’s claims. Whether absolute or qualified, the legislative privilege protects the legislators from the requested document production.
Unanimous Federal Appeals Court Rejects Challenge by Members of Congress to Covid Mask Mandate, Citing Speech or Debate Clause Immunity
Read the Federal District Court Opinion Holding former VP Pence Did Not Have Speech or Debate Clause Immunity to Testify About Certain Election Subversion/January 6 Events
Still partially redacted, but now released. (Via Zoe Tillman)
“Pence to fight special counsel subpoena on Trump’s 2020 election denial”
Mike Pence is preparing to resist a grand jury subpoena for testimony about former President Donald Trump’s push to overturn the 2020 election, according to two people familiar with the former vice president’s thinking.
Pence’s decision to challenge Special Counsel Jack Smith’s request has little to do with executive privilege, the people said. Rather, Pence is set to argue that his former role as president of the Senate — therefore a member of the legislative branch — shields him from certain Justice Department demands.
Pence allies say he is covered by the constitutional provision that protects congressional officials from legal proceedings related to their work — language known as the “speech or debate” clause. The clause, Pence allies say, legally binds federal prosecutors from compelling Pence to testify about the central components of Smith’s investigation. If Pence testifies, they say, it could jeopardize the separation of powers that the Constitution seeks to safeguard.
“He thinks that the ‘speech or debate’ clause is a core protection for Article I, for the legislature,” said one of the two people familiar with Pence’s thinking, who spoke on condition of anonymity to discuss his legal strategy. “He feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.”
“Debate over constitutional clause could delay Collins’ trial”
Buffalo News reports on the Speech or Debate Clause issue in Rep. Chris Collins’s insider trading trial.
Breaking: Supreme Court Declines to Hear Speech or Debate Case Issue Related to Pa. Gerrymandering Cases
17-1368 SCARNETI, JOSEPH B. V. AGRE, LOUIS, ET AL. The appeal is dismissed for want of jurisdiction.
Here were the questions presented in the jurisdictional statement:
1. Did the lower court err in holding that the “speech or debate” privilege is a qualified privilege when considered in connection with civil redistricting litigation, and that state legislators must disclose information regarding the crafting and drafting of redistricting legislation in discovery in such litigation?
2. If the “speech or debate” privilege is qualified when considered in connection with civil redistricting litigation, to what extent should that qualified privilege protect against the questioning of state legislators, and the disclosure of documents possessed by state legislators during discovery in such litigation?
Would Any Prosecution of Sessions Be Barred by the Speech or Debate Clause?
Putting aside whether perjury could be proven against AG Sessions, there’s another possible hurdle: the Speech or Debate Clause, which gives members of Congress immunity from criminal prosecution for certain legislative acts, for example a speech on the Senate floor.
Would a sitting Senator testifying as an executive nominee get the benefit of the Speech or Debate Clause. Josh Chafetz suggests yes, though I’d like to see more analysis.
“Menendez asks Supreme Court to hear case”
Josh Gerstein for Politico:
Sen. Bob Menendez is asking the Supreme Court to consider his argument that federal bribery charges he is facing impermissibly intrude into a legislative activity protected by the Constitution’s speech-or-debate clause.
In a petition submitted to the high court this week, attorneys for the New Jersey Democrat argue that a federal appeals court improperly insisted that he needed to prove his motives were “pure” when he took actions that benefited friend, campaign donor and ophthalmologist Salomon Melgen.
Notable that Paul Clement is on the brief, along with Abbe Lowell.