Jim Dey: Schock's lawyers want all charges tossed

Jim Dey: Schock's lawyers want all charges tossed

A day after federal prosecutors blithely dismissed misconduct allegations by an indicted former congressman, lawyers for Aaron Schock filed legal papers asking that the 22-count indictment against their client be dismissed because it is constitutionally and legally flawed.

Washington lawyer George Terwilliger argued in voluminous motions filed Thursday that criminal charges filed against Schock are based on "ambiguous" rules, unconstitutionally infringe on legislative independence and seek "to prosecute" Schock "for alleged violations of standards of conduct that are so lacking in contour as to contravene" the U.S. Constitution's due process clause.

"These numerous flaws pollute the entire indictment and are so inextricably linked with the indictment as a whole that dismissal is warranted on all counts," Terwiller wrote.

The 35-year-old Schock, a Republican from Peoria, was indicted in November 2016 on a variety of charges that include theft of government funds, wire fraud, making false statements and income tax evasion.

He's scheduled to go to trial on July 10 at the federal courthouse in Urbana before U.S. Judge Colin Bruce.

Needless to say, dismissal of the indictment would be a huge step that will be vigorously resisted by federal prosecutors, who face a May 4 deadline to respond.

In an earlier motion, Schock's lawyers argued that governmental misconduct, including allegedly inappropriate behavior by a Schock staffer turned government mole, provided the basis for Judge Bruce to order prosecutors to turn over to the defense all records related to the mole to determine if there are grounds to suppress evidence improperly seized or dismiss charges outright.

In a vigorous response filed Tuesday, Assistant U.S. Attorney Tim Bass asserted that Schock is entitled to no further information from government files and that the mole, former Schock office manager Bryan Rudolph, had engaged in no improprieties while assisting investigators.

Bass argued that Schock is engaging in an "increasingly aggressive search for governmental misconduct" to escape prosecution.

Whatever the truth, Schock lawyers are doubling down on their effort to win the case before they have to go to trial by attacking the method by which the government built its case.

"Having sought for its own purposes to cast such a broad net, the government must now be held to account when its intended reach has exceeded its constitutional grasp. ... This is not a bribery case, and the charges in the indictment implicate conduct that occurred in the internal confines of the administrative process of the House of Representatives. As such, this case directly implicates the separation of powers and the area reserved for the House's own business in a way that cases involving bribery or graft do not," the defense motion states.

The government has charged that Schock illegally sought reimbursement for mileage expenses, used campaign funds for personal expenses and did not pay income tax on the proceeds.

The defense argument is that Schock was operating under House rules that were not clear, House overseers approved his expense requests and it's improper for executive branch prosecutors to substitute their judgment about what's permitted to justify the criminal prosecution.

"This court sits to hear alleged violations of the federal criminal code; it does not sit as the Court of Appeals of the House Finance Office. Nor can the executive fashion itself a super-regulator of the legislature's own internal administration," the defense states.

Noting that the U.S. Constitution established Congress as one of three separate and equal branches of the federal government, Schock lawyers claim that, as a member of the House, he operated under "inherently ambiguous" rules designed to "afford members of Congress sufficient latitude in directing spending for their official functions."

"By usurping the constitutional prerogative of the House to make and interpret its own rules, the indictment trespasses the separation of powers," the defense stated.

While arguing Schock's conduct is not criminal, the defense ignores the appearance surrounding his handling of mileage and office expenses and campaign money.

For example, the indictment alleges that Schock sought mileage reimbursement for claims that "substantially exceeded the overall total of miles the vehicle was actually driven." It claims he purchased a $78,000 Chevy Tahoe with campaign funds, put the title in his own name and did not reimburse his campaign committee.

It also alleges he used campaign funds to purchase tickets to high-profile sports events and then sold the tickets to brokers at a profit, keeping all the proceeds for himself and not reimbursing the campaign funds.

While that conduct would surely raise appearance problems in a political campaign, the defense said that purchases and expenditures are governed by hazy rules that cannot be criminalized.

Schock's meteoric political career, one that saw him elected to the Peoria school board at 19 and the Illinois House at 23, climaxed when he was elected in 2008 to the U.S. House.

His surprising resignation came on March 17, 2015, following a series of news stories that challenged his mileage reimbursements and raised questions as to their propriety. The stories that appeared in a variety of news outlets were based on a series of well-orchestrated leaks from a still-unidentified source close to Schock's congressional office.

Schock subsequently acknowledged sloppy handling of office and campaign funds but denied any "intentional" wrongdoing, a crucial element in any criminal prosecution. He reimbursed the government with a payment of about $100,000.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or at 217-351-5369.

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