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Two lobbyists and a congressional staffer walk into a strip club called Privilege

This is surely the start of an awesome joke. Email me when you come up with the rest.

Ok, I could have entitled this “D.C. Circuit issues mildly interesting decision on the Speech or Debate Privilege,” but then you wouldn’t be reading it, would you?

Anyway, the court just issued this decision upholding the conviction of Frasier Verrusio, the hapless former policy director for the House Committee on Transportation and Infrastructure, who somehow managed to parlay a night of boring Washington-style debauchery into three felony counts of receiving illegal gratuities.

Basically, there were two lobbyists, Todd Boulanger and James Hirni, who were scheming to get some language inserted into the federal highway bill at the last minute on behalf of a client called United Rentals. They sought assistance from Verrusio and a Senate staffer named Trevor Blackann for this so-called “airmail strategy.” Then the client representative, Todd Ehrlich, snagged some tickets to the first game of the 2003 World Series, and the rest was history:

Hirni invited Blackann and Verrusio to the World Series game and made clear that United Rentals would cover the costs. Both men accepted the invitation. Hirni and Blackann flew to New York together and met Ehrlich there. Over drinks, Blackann described the airmail strategy that he, Verrusio, and the two lobbyists had agreed was “the best course of action.” Shortly thereafter, Verrusio joined them for dinner. According to Hirni, the four men “talked a lot about United Rentals” and “got into a conversation about concepts and ideas United Rentals had for federal legislation.” Verrusio was “the senior guy at the table,” Blackann testified, and was “leading the conversation.” Verrusio “walked them through” the airmail strategy, indicating that it had “the best chance for ultimate success.” Ehrlich paid for the dinner and drinks.

On the way to Yankee Stadium, the chauffeured car carrying the four men stopped at a convenience store, where Hirni bought several small bottles of liquor for the group. The men then went on to the game. On their way out of the stadium, Verrusio signaled to Hirni that he and Blackann wanted souvenir jerseys. Hirni paid for them with his corporate credit card.

After leaving the stadium, the group went to a strip club called Privilege. Hirni paid the cover charge and the cost of drinks, while Ehrlich paid for several lap dances. Hirni also bought Verrusio and Blackann t-shirts from the club. When the group left, they stopped for pizza before returning to their hotel. The next morning, Hirni paid the hotel expenses, and Verrusio, Blackann, and Hirni took a car to the airport and flew to Washington, D.C.

Slip op. at 5-6 (citations omitted).

None of that is particularly important, but I wanted you to know that I didn’t make up the part about the strip club.

So on to the Speech or Debate issue.

As part of his defense, Verrusio had sought to subpoena Vivian Moeglein, a former legislative director for Congressman John Boozeman, to testify that Verrusio did not try to get her to insert language into the highway bill or otherwise to assist United Rentals. This evidence, Verrusio contended, would tend to show that he did not help implement the “airmail strategy” and therefore that the gifts he received from United Rentals were not on account of an official act, as required by the gratuities statute.

The district court, however, quashed the subpoena on grounds that compelling her testimony would violate the Speech or Debate Clause. On appeal, Verrusio argued (1) the Speech or Debate Clause is not absolute and that the district court “should have balanced his Fifth and Sixth Amendment rights against the Speech or Debate Clause privilege and found that his rights prevailed” and (2) alternatively, the indictment should have been dismissed on the grounds that Moeglein’s unavailability deprived him of a fair trial.

The D.C. Circuit did not decide the first issue because it found that Verrusio had waived the argument at trial. However, the court found the trial court in any event did not commit plain error because there is no precedent supporting Verrusio’s position. Slip op. at 37 (“Verrusio points to no case in which any court has found that a defendant’s Fifth and Sixth Amendment rights trump the Speech or Debate Clause privilege, and he acknowledges that this is ‘an issue that has apparently never been directly confronted by any court.’”).

With regard to the second issue, the D.C. Circuit seemed to implicitly accept Verrusio’s position that the indictment would have to be dismissed on grounds of violation of his right to compulsory process and due process if the effect of the Speech or Debate privilege was to deprive him of evidence material to his defense. But the court found that Moeglein’s testimony did not rise to that level.

To prevail, Verrusio would have to show that Moeglein’s testimony was both material and favorable to the defense, and that its absence actually prejudiced his ability to mount a defense. But the D.C. Circuit found that the evidence would only show that Verrusio did not try to pressure or influence one particular staffer and would at most be “extraordinarily weak” evidence that he did not try to influence anyone on behalf of United Rentals. In any event, the prosecution was not required to show that Verrusio actually did anything for United Rentals, merely that the gifts were given in contemplation of an official act, whether or not that act was ever performed.

Accordingly, the D.C. Circuit rejected Verrusio’s Speech or Debate arguments (along with a number of others) and affirmed his convictions.

Admittedly, the opinion in U.S. v. Verrusio doesn’t add much to the following, which I wrote in connection with the Roger Clemens trial a few years ago:

Because the protections of Speech or Debate are absolute,. . . the privilege cannot be overcome by a showing that the evidence is needed to assure a fair trial.  It does not follow, however, that a criminal defendant’s right to a fair trial must give way to the privilege.  Instead, if a congressional committee refuses to produce evidence that a court believes may be needed to assure the defendant a fair trial, the court may ask the committee for an opportunity to review the material in camera.  If the court cannot assure itself that the defense has access to all material evidence, it may dismiss the relevant counts.

But, still, a strip club called Privilege.

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