Lansing — House Speaker Kevin Cotter may not be able to avoid taking the witness stand and testifying about the alleged criminal acts of former Reps. Todd Courser and Cindy Gamrat, which he used to force them from office last year.
Ingham County District Court Judge Hugh B. Clarke Jr. ruled Friday it would be “patently unfair” for Gamrat and Courser’s attorneys to not have an opportunity to question Cotter in their clients’ defense.
“Fundamental fairness would seem to require this,” Clarke wrote in a six-page opinion released Friday.
Clarke said he will hold a closed-door hearing in his chambers with Cotter to let Courser and Gamrat’s attorneys ask the speaker up to 15 written questions submitted in advance.
From there, the judge will determine whether Cotter should have to testify under oath during a preliminary examination hearing next month in Courser and Gamrat’s criminal case.
“This procedure would allow the court to properly balance the interests of the defendants against the privilege sought to be accorded Speaker Cotter,” Clarke wrote.
Courser and Gamrat face felony misconduct in office charges related to Courser’s failed cover-up of their extramarital affair, as well as other charges that center around whether they had their aides illegally forge their signatures on draft legislation.
Cotter’s attorneys had invoked legislative immunity in an effort to shield the House Republican leader from being forced to testify.
“(Speaker Cotter) doesn’t get to hide behind the immunity blanket he tried to cloak himself with in Nixonian fashion,” Gamrat attorney Mike Nichols said Friday. “He’s the most important player in all of this.”
Cotter, R-Mount Pleasant, is considering an appeal of Clarke’s ruling, spokesman Gideon D’Assandro said.
“We have reviewed the court’s decision, and we respectfully disagree with its reasoning and holding,” D’Assandro said Friday. “We will be reviewing all available remedies, including an immediate appeal.”
In his written opinion, the judge said there would be no harm to Cotter by subjecting him to the questions in his chambers.
“There is no specialized claim here that an in camera review or questioning of Speaker Cotter would create a hardship or prevent him from otherwise carrying out his legislative duties,” Clarke wrote.
The House expelled Gamrat on Sept. 11 and Courser resigned shortly before to avoid a similar fate. The two conservative Republicans have long contended Cotter forced them office not because of their personal conduct, but for political reasons.
Clarke’s ruling Friday suggested the fairness of proceedings used to remove Courser and Gamrat from office play a role in whether their conduct was criminal.
“While the Legislature may determine qualifications for its members, they certainly cannot do so in an arbitrary or discriminatory manner,” the judge wrote. “No State Constitution would condone that type of application of its provisions.”
The Republican-controlled House’s attorneys also moved this week to block Attorney General Bill Schuette’s office and Courser and Gamrat’s attorneys from compelling the testimony of top House employees in the criminal case.
Cotter’s legal team wants to shield House Business Office Director Tim Bowlin, clerk Gary Randall, Chief of Staff Brock Swartzle, Majority Legal Counsel Hassan Beydoun, Deputy Business Director Douglas Simon and Financial Operations Director Deborah Wroubel.
Clarke has scheduled a May 25-26 preliminary hearing in 54A District Court to determine whether Courser and Gamrat should stand trial.
Bowlin led the internal investigation into Courser and Gamrat after The Detroit News first reported Aug. 7 that Courser tried to get a House aide to send fellow Republicans a fictional email claiming he was caught having sex with a male prostitute behind a Lansing nightclub.
House attorneys contend legislative employees are protected from being forced to testify under the speech and debate clause of the state Constitution as well as attorney-client privilege.
Two of the misconduct charges against Courser and Gamrat centers on Courser’s distribution of the email from an anonymous email address and whether Gamrat knew about it.
If the House employees can’t testify, Nichols said, “I don’t know how the Attorney General could possibly make out a case.”