Jim Dey: Schock case a separation-of-powers quagmire

Jim Dey: Schock case a separation-of-powers quagmire

With a pending appeal of his request to dismiss criminal charges against him, former U.S. Rep. Aaron Schock of Peoria is getting help from an unexpected source.

The bipartisan leadership of the U.S. House — led by Republican Speaker Paul Ryan and Democratic Minority Leader Nancy Pelosi — filed a friend-of-the-court (amicus curiae) brief emphasizing that Congress is a separate, coequal branch of the federal government and that its power to write its own rules is not subject to interference by either the executive or judicial branches of government.

"The House's interest is solely in highlighting the important constitutional interests ... that provide the backdrop against which this appeal should be resolved," the House brief states.

Schock, a one-time boy wonder of Illinois politics, was indicted in November 2016 on a multi-count indictment charging that he requested inappropriate reimbursements for expenses, including travel.

Schock lawyers contend their client's allegedly criminal conduct was related to his official duties and that he had no intention to misuse either his campaign or office funds. Finally, they argue, basing a prosecution on alleged violations of House rules unconstitutionally breaches the separation of powers doctrine.

In October, U.S. Judge Colin Bruce dismissed two counts against Schock he said were improperly brought. While acknowledging that Schock's case is "rife with potential issues related to the separation of powers," he left a variety of theft-related charges standing.

In pursuit of a dismissal on all charges, Schock's lawyers have appealed Judge Bruce's decision to the 7th Circuit Court of Appeals in Chicago.

Meanwhile, there is action on the prosecution side of the case.

Federal prosecutors first indicated they would appeal Judge Bruce's decision dismissing two counts of the 24-count indictment. Assistant U.S. Attorney Patrick Hansen filed a Nov. 21 notice of appeal.

Last week, the government withdrew Hansen's planned cross-appeal in a motion signed by William Glaser, a Washington-based lawyer in the Justice Department's criminal appeals division.

There was no explanation for the personnel change, the second in this case. Previously, Assistant U.S. Attorney Tim Bass's name was common in government filings. Lately, it has not been seen.

Hansen and Bass drew Judge Bruce ire's when they told him, in response to defense complaints, that they had not improperly and repeatedly told grand jurors that Schock declined to testify before them. Later, they reluctantly acknowledged they had done so before two different grand juries.

The amicus brief filed by the U.S. House explains why that body must be the sole setter of rules governing its members. Intentionally ambiguous, House rules are "intended to ensure that members of Congress can conduct their legislative and other constitutionally assigned duties free from interference or intimidation by either (the executive or judicial) branches of government." That preserves "the independence and vigor of the legislative branch that is essential to our system of divided government and ordered liberty."

Schock faces a variety of charges, including income tax evasion, mail fraud and wire fraud stemming from the alleged submission of "false and fraudulent vouchers" for reimbursement.

House lawyers argue "decisions about what and how to spend (office funds) are within the discretion of each individual member and subject only to rules set forth in a House 'Handbook.'"

In dismissing one count against Schock, Judge Bruce said the charge called for the court to make its own determination of what a House rule means, a power Bruce acknowledged the judiciary does not possess. In their brief, Schock lawyers said Judge Bruce erred when he failed to dismiss other charges they contend rely on an unconstitutional interpretation of House rules.

"To reach this conclusion, the district court undertook a count-by-count examination that effectively transformed the case indicted into a hypothesized one that the government might present. For example, as to the mileage reimbursements fraud charges (Counts 1-5), the district court characterized those as 'false claim' charges and speculated that the proof 'can conceivably be accomplished without any reliance on House rules,'" Schock lawyers wrote.

Waiting to see if the government can meet that standard, they argue, would vitiate legislative independence because requiring "a legislator to run the gauntlet of trial to vindicate an immunity or protection afforded by the Constitution against suit is to destroy that very protection regardless of the trial's outcome."

The government alleges Schock sought expenses for miles not driven and improperly sought reimbursement for office furniture and camera equipment.

"The crux of the district court's holding was that the government might be able to prove a case (even if different from the case charged) without resorting to House rules. This approach flies in the face of the indictment, which references the rules repeatedly and bases the charged scheme on rules violations. Those rules are necessary to prove materiality and intent. The district court effectively re-wrote a constitutionally flawed Indictment," the defense brief states.

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

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Zinger wrote on February 11, 2018 at 11:02 am

This case is turning into a real boondoggle for taxpayers. 

As it reads now, it took two grand juries to indict Aaron Schock.  They used his “non appearance” against him violating his 5th amendment constitutional rights, and then lied to about it to a federal judge.

The government announces their appeal of two counts that were tossed and then does a head fake and withdraws its appeal - presumably because they realized they would lose.

The government is now on their third prosecutor babysitting the case - because of so many screw ups. 

Paul Ryan and Nancy Pelosi agreed - something they rarely do! - that Shock is facing wrongful prosecution of the house rules they wrote.  I don’t remember the Senate weighing in for Menendez??

So how much money are we going to spend covering up the government’s screw ups?  I have been following this case for two years now.  I was kinda looking forward to driving to Springfield for the trial.  The allegations centered around Schock’s false statements and misuse of government funds.  But now it seems like the real people who are guilty of false statements and misuse of government funds is the government.   Who will hold them to account?








johnny wrote on February 12, 2018 at 2:02 am

The real question remains:  who is behind these bogus charges against Schock?  That person should be prosecuted to the hilt.

EdRyan wrote on February 12, 2018 at 9:02 am

This is what happens when you make poor interior decorating decisions.