Rep. Duncan Hunter, R-Alpine, argued to the 9th U.S. Circuit Court of Appeals on Friday that filing campaign finance forms is a legislative act -- immune from federal prosecution by constitutional separation of powers protections.
If his argument is successful, the case against him could ultimately be dismissed prior to trial that’s supposed to start Jan. 14 as Hunter prepares to run for re-election in a March primary election.
Hunter, 42, was indicted in August 2018 along with his wife and former campaign manager, Margaret, on 60 federal counts of misusing campaign funds and covering up the crimes.
The two were accused of living well beyond their means by spending money from political donors on family vacations, dental work, private school tuition, fast food, groceries and other expenses. The congressman also was accused of spending the funds on extramarital affairs.
Rep. Duncan Hunter filing to 9th U.S. Circuit Court of Appeals
Sep. 6, 2019
The two pleaded not guilty when they were arraigned.
In June, Margaret Hunter reached a deal with prosecutors and pleaded guilty to a single criminal charge and agreed to testify against her husband.
With his trial looming, Rep. Hunter notified the appeals court in July that he planned to challenge a ruling District Court Judge Thomas J. Whelan made earlier the same month. Whelan rejected a similar argument by Hunter that his actions constituted legislative activity protected by a section of the U.S. Constitution known as the speech or debate clause.
In general, the clause prevents members of Congress from being prosecuted for legislative acts taken in the course of their official duties.
Because the appellate court rarely accepts appeals before a trial court has concluded its work, it ordered Hunter to file by Sept. 6 a brief showing legal cause for why it should agree to the special appeal before his trial.
The law allows new evidence to be introduced in support of a federal claim once it is properly presented, according to the brief, and Hunter did just that in the brief his appellate attorney, Devin Burstein, submitted Friday to the 9th Circuit.
Burstein argued in the brief that the government should not have been allowed to use for its prosecution evidence related to financial disclosures Hunter’s campaign submitted to the Federal Election Commission. Burstein argued that information from the FEC filings was constitutionally protected legislative activity because it is “inextricably intertwined with the ability to legislate.”
To explain how the clause would apply to FEC reports, the brief provides a hypothetical scenario: A member of Congress up for reelection wants to galvanize a certain voter base, so the lawmaker proposes legislation the base likes. As part of fact-finding activities for the legislation, the member takes well-known advocates of the relevant issue out for a series of dinners at campaign expense, and reports the expenditure on disclosures to the FEC as required by law.
A hostile Executive Branch opposed to the legislation could then publicize the expenditure in an effort to scuttle the pending bill, the brief goes on to say. If that tactic failed and the speech or debate clause did not apply to the FEC reports, the hostile Executive Branch could then attempt to derail the legislation by using the reports to indict the lawmaker.
According to Hunter’s brief, Hunter needs to prove only that his claim under the speech or debate clause has “some possible validity” for the court to take jurisdiction before trial as what is known as an interlocutory appeal. It said Hunter does not have to prove he can ultimately prevail on the merits of his arguments for the court to agree to the special kind of appeal.
The U.S. Attorney’s Office will also face expedited deadlines to reply to Hunter’s brief, according to court records.
