Senator Stevens’s lawyers have filed a blizzard of motions attacking the indictment against him. One contends that the indictment violates the Speech or Debate Clause of the Constitution. For the reasons set forth below, it is highly unlikely that Stevens will be successful in having the indictment dismissed on this basis. Making this argument, however, could be to Stevens’s advantage for two reasons: (1) it focuses the court’s attention on some of the peripheral allegations of the indictment, which could lead to the court limiting the government’s ability to present evidence on these allegations and (2) it creates an opportunity for Stevens to take an immediate appeal, which could result in delaying the trial. Stevens’s Speech or Debate theory is focused on Paragraph 17 of the indictment, which states:
17. It was part of the scheme that STEVENS, while during that same time period that he was concealing his continuing receipt of things of value from ALLEN and VECO from 1996 to 2006, received and accepted solicitations for multiple official actions from ALLEN and other VECO employees, and knowing that STEVENS could and did use his official position and his office on behalf of VECO during that same time period.These solicitations for official action, some of which were made directly to STEVENS, included the following topics: (a) funding requests and other assistance with certain international VECO projects and partnerships, including those in Pakistan and Russia; (b) requests for multiple federal grants and contracts to benefit VECO, its subsidiaries, and its business partners, including grants from the National Science Foundation to a VECO subsidiary; and (c) assistance on both federal and state issues in connection with the effort to construct a natural gas pipeline from Alaska’s North Slope Region
Stevens accuses the government of ”the strategic use of pluralization and the word ‘including’” so as to sweep potential legislative acts within the broad scope of activities for which Steven received solicitations. Thus, for example, the “official action” requested could have been a phone call to an executive branch official urging favorable consideration of VECO’s application for a contract or grant, which would not be a legislative act protected by the Speech or Debate Clause, or voting for an earmark in an appropriations bill, which would be.
Even if Paragraph 17 refers to legislative acts, however, this would not necessarily violate the Speech or Debate Clause. Under the confusing and rather illogical framework established by the courts, references to future legislative acts are not themselves considered to be protected by the privilege. Thus, the government may be permitted to show that Stevens received solicitations to perform legislative acts, so long as it does not allege or prove that he actually performed such acts.
On the other hand, the first sentence of Paragraph 17 alleges that someone (presumably the conspirators) performed their concealment “knowing that Stevens could and did use his official position and his office on behalf of VECO.” This sentence isambiguous (in addition to being confusing and rather ungrammatical) with regard to whether the government is alleging only the state of mind of the conspirators (i.e., what they thought they knew about Stevens’s previous actions) or what Stevens actually did. If the former, the Speech or Debate Clause arguably would not apply. In the McDade case, for example, the Third Circuit rejected a Speech or Debate challenge to the indictment, explaining that “the indictment relies on the defendant’s committee status, not to show that he actually performed any legislative acts, but to show that he was thought by those offering him bribes and illegal gratuities to have performed such acts and to have the capacity to perform other similar acts.”
Given the case law, there seems to be little ground for arguing that the indictment on its face violates the Speech or Debate Clause. Moreover, as Stevens himself argues, the allegations of Paragraph 17 are not necessary to the counts against him. Even if the grand jury was exposed to some Speech or Debate material in connection with these allegations, this would not be the sort of wholesale violation of the privilege that would permeate the grand jury proceedings and warrant the dismissal of the indictment.
Nevertheless, by making this motion, Stevens may hope to sensitize the court to the fact that the government is trying to introduce a great deal of evidence regarding his official actions, many of which are, at the very least, closely related to his legislative activities. The government is not alleging that these actions were a quid pro quo for the favors Stevens allegedly received from Allen or VECO, or that they were otherwise part of any criminal conduct. Stevens is not charged with bribery or with receiving gifts related to official actions. Instead, he is charged with falsifying his financial disclosure statements by failing to include gifts received from or liabilities owed to Allen or VECO.
The government contends that Stevens’s official actions demonstrate “Senator Stevens’ intent and his motive to conceal the substantial benefits he received from VECO.” It is questionable, however, how much probative value this evidence actually has. If Stevens was receiving gifts from VECO, his motivation not to disclose them seems clear, since such accepting such gifts would violate the Senate’s rules. Indeed, one assumes that Stevens’s defense will not be based on the absence of motivation to conceal the payments in question, but on the fact that he did not know he was required to disclose these payments.
It might be argued that if Stevens were to disclose gifts from or liabilities to a company with substantial business interests that could be impacted by his official actions, this might attract more attention than a similar disclosure related to a company with no such interests (assuming one could find a company with no interests impacted by the chairman of the Senate Appropriations Committee). But this seems like a fairly tangential point, one that could be made without a detailed recitation of all the assistance sought by VECO or provided by Stevens. The real point of the evidence the government seeks to submit may be to prejudice the jury against Stevens by implying bribery without actually alleging or proving it.