By Ken Stone
Rep. Duncan D. Hunter’s lawyer warned a federal appeals court Wednesday that if “relevant portions” of a secret grand jury transcript aren’t shared with him immediately after a Dec. 12 hearing, a January trial could be derailed by another appeal.
Devin Burstein, the Alpine Republican’s attorney, told the 9th Circuit U.S. Court of Appeals that Hunter would have grounds to ask U.S. District Judge Thomas Whelan to dismiss the case if transcripts used at trial contain material protected by the Speech or Debate Clause of the Constitution.
“And if that motion is denied, Congressman Hunter would again appeal [to the 9th Circuit], stopping the trial in its tracks,” Burstein said in a supplemental brief filed Wednesday.
The appeal mainly revolves around whether Whelan was right in allowing evidence of Hunter taking his family on a pricey Italian vacation in November 2015 that allegedly tapped campaign funds.
Hunter says the case should have been dismissed because he was engaged in a legislative act — a hoped-for-but-never-taken day tour of a Navy base.
Burstein also revealed that among those who testified before a San Diego federal grand jury was another member of Congress as well as a legislative aide and “Hunter’s close confidants.” The House colleague’s name wasn’t specified.
And the downtown lawyer doubled down on his argument that Hunter’s Federal Election Commission filings can’t be used against the six-term congressman.
Such financial disclosures are a prerequisite to the job, Burstein argued, “and thus part and parcel of the ability to legislate,” another reference to the constitutional clause that bars prosecution of federal lawmakers for doing their jobs.
“This is like a barber using a flamethrower instead of a hairdryer,” he wrote the three-judge federal panel ahead of a Seattle hearing. “And it evinces precisely the type of Executive overreach that the Clause was intended to prevent.”
Hours later Wednesday night, government prosecutors filed their own supplemental brief.
David D. Leshner, writing for the San Diego U.S. Attorney’s Office, said Hunter’s arguments would require the 9th Circuit to declare large sections of the Federal Election Campaign Act unconstitutional.
“Filing those disclosures is a quintessential political act,” Leshner wrote. “Even candidates who have not yet been elected do it. Thus, the workings of Congress can proceed apace whether a member (or, for that matter, the entire body) files FEC disclosures or not.”
Therefore, he said, the 50th District representative can’t credibly argue that filing such forms is a protected legislative act.
Leshner also cites the House Ethics Manual, which says “the completion of FEC reports” is campaign or political activity — not protected legislative activity.
“In addition, the Manual pronounces that House members are subject to a wide variety of laws, including FECA, when campaigning,” he said.
Hunter attorney Burstein appears aware that he’s asking a lot.
“It is not hyperbole to say the [9th Circuit] decision in this case will echo beyond its facts,” he said. “At issue is whether the [Speech or Debate] Clause is a bulwark or a paper tiger. The Constitution intended the former.”
He said the preference for grand jury secrecy must give way to the clause’s constitutional safeguards.
Even without the grand jury transcript, Burstein said, the court should dismiss the case because it relied on Hunter’s communications — text messages — with then Chief of Staff Joe Kasper “regarding an official naval-base visit.”
“They fall within the Clause’s purview, regardless of whether Congressman Hunter was in Italy for a family vacation,” he said.
Burstein noted that people work during family vacations, “and there is no dispute that, while in Italy, Congressman Hunter and his aide were discussing a work-related visit to a naval base. That alone is the salient fact.”
“While ordinarily a single error in the indictment process might not warrant dismissal, the Court can take judicial notice that San Diego is a Navy town. … In that context, there is no way to overstate the impact on the grand jurors from the improper introduction of Congressman Hunter’s profane remark.”
That’s a reference to when Hunter texted Kasper to “tell the navy to go f— themselves” for not accommodating a requested visit to a U.S. base in Naples.
Along with Assistant U.S. Attorneys Emily W. Allen, Mark Conover and Phillip L.B. Halpern, Leshner pointed out that Hunter didn’t use the “aborted naval-base inspection” argument about protected legislative activity until more than 28 months after the parties first discussed potential Speech or Debate issues.
“Unsurprisingly, the district court reviewed this belated claim and, after weighing the relevant evidence and the applicable law, correctly rejected Hunter’s argument that it was a legislative act,” Leshner wrote. “Instead, the effort was a pretext likely designed from the outset to excuse the more than $10,000 in campaign funds Hunter spent on the family vacation.”
Leshner also said Burstein failed to mention the “extraordinary steps” taken by the government to avoid intruding into Hunter’s Speech or Debate protections.
“Indeed, at the very outset of the government’s overt investigation, government counsel conferred with Hunter’s defense team and specifically articulated their desire to avoid reviewing any materials that conceivably could be encompassed by the Speech or Debate Clause.”
Prosecutors made this offer “early and often,” Leshner said.
“Even though government counsel repeatedly asked Hunter to identify and segregate any materials he deemed protected by the privilege, Hunter never suggested that any of the activities or discussions surrounding his family vacation in Italy, in general, or his pretextual trip to the naval base, in particular, were privileged or constituted protected legislative activity,” he said.
In August 2018, the Hunters pleaded not guilty to a 60-count indictment alleging fraud and conspiracy involving $250,000 in campaign funds purportedly spent on personal items and trips.
But in June, Margaret Hunter changed her plea to guilty on one conspiracy count, admitting she and her husband used a campaign credit card to spend more than $25,000 a year between 2010 and 2016 on personal expenses.
She could testify at a four-week trial set to start Jan. 22, 2020.
>> Subscribe to Times of San Diego’s free daily email newsletter! Click hereFollow Us: