CHICAGO — Lawyers for ex-Rep. Aaron Schock and Justice Department prosecutors clashed in a federal appeals court Wednesday as the Illinois Republican seeks to derail his indictment on corruption charges.
But Chief Judge Diane Wood of the Seventh Circuit of Appeals in Chicago — as well as Judge Frank Easterbrook — appeared unconvinced by arguments that the case against him should be thrown out. A trial for Schock is on hold while the legal issues are sorted out.
Schock was indicted in Nov. 2016 for wire fraud, mail fraud, filing false federal tax returns, submitting inaccurate reports to the Federal Election Commission, making false statements and theft of government funds.
Since resigning from Congress three years ago, Schock has been fighting the indictment in court, arguing that federal prosecutors overstepped their bounds when they charged him. A district court judge rejected Schock’s motion to dismiss the case in October, but Schock’s defense team appealed that ruling.
A ruling by the appeals court could take weeks or months, with the losing side likely to file further appeals, so a trial does not seem imminent at this point.
Schock, who attended Wednesday’s court session along with his parents, didn’t offer any information about his activities since leaving office except to say that he is “doing well.”
In oral arguments, Schock’s defense team claimed House rules for car mileage reimbursements are too vague to base criminal charges upon. Schock has been accused of pocketing tens of thousands of dollars in reimbursements after submitting false mileage reports following a POLITICO report.
Benjamin Hatch, Schock’s lawyer, also asserted in a highly technical argument that it would be a violation of the separation of powers doctrine, as well as the Speech or Debate Clause, to prosecute Schock. According to Hatch, the executive branch shouldn’t be involved in interpreting internal congressional rules, stating it would be a constitutional violation to do so.
“Our position is an ambiguous House rules can’t be used as evidence to prosecute a member of Congress,” Hatch told the three-judge panel. “The House rules do not determine whether anyone, including Mr. Schock, violated” federal law.
In his presentation, Hatch relied heavily on a 1995 appeals court ruling that threw out some of the corruption charges against the late Illinois Democratic Rep. Dan Rostenkowski. Rostenkowski later pleaded guilty to two counts of mail fraud, but the case was much narrower than the original indictment against him. The Justice Department now says that ruling was incorrect.
By attacking the mileage issue, Hatch and Schock’s other lawyers are trying to undermine the entire indictment, stating all charges should be dismissed if the appeals court knocks out that part of the indictment. Schock claimed, and was paid, more than $138,000 for "fraudulent claims for mileage reimbursements,” according to the indictment.
But Wood was clearly skeptical of Hatch’s assertion, engaging in several long exchanges with him over the issue. Wood asked if it would be legal if the House passed a rule to pay members “$1 million each but they don’t have to report it on their income tax?” Hatch countered that would be a violation of federal law, but Wood didn’t appear convinced.
Wood noted that DOJ’s position is that Schock should face trial first, and then if any issues arise regarding House rules during those proceedings, they can be handled on appeal.
Easterbrook questioned whether “House rules should be treated differently” than similar internal rules from the executive or legislative branches. Easterbrook noted that officials from both those branches of government have faced criminal charges for violations.
William Glaser, who represented the Justice Department in the hearing, argued that, “There is no constitutional right to avoid trial simply because the rules of the House or Senate are involved as evidence.”
While saying the Justice Department is cognizant that it can’t be seen as being involved in making rules for Congress — the Constitution leaves that up to each chamber — Glaser suggested Schock’s “underlying conduct” is the key to the case. Since Schock’s mileage claim so wildly exceeded his actual mileage, according to DOJ, there is no way that Schock could be in compliance with the House rule, no matter how vague.
Glaser also attacked the 1995 ruling, calling it “incorrect,” a position the Justice Deparment has taken in its legal motions in this case.
In his rebuttal, Hatch repeatedly returned to the separation-of-powers argument. Yet Woods questioned whether House rules would mean that Schock only had to be “partially honest’ on his mileage reimbursement claims. Easterbrook appeared to be unconvinced as well.
Schock’s defense team did not respond to a request for comment.