United States v. Aaron Schock , 891 F.3d 334 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3277
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AARON J. SCHOCK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 16-CR-30061 — Colin S. Bruce, Judge.
____________________
ARGUED APRIL 18, 2018 — DECIDED MAY 30, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and EASTERBROOK,
Circuit Judges.
EASTERBROOK, Circuit Judge. Aaron Schock resigned from
Congress on March 31, 2015, after his constituents respond-
ed adversely to disclosures about trips he took at public ex-
pense, the expense of his elaborate office furnishings, and
how he had applied campaign funds. Twenty months later,
Schock was charged in a federal indictment with mail and
wire fraud, theft of government funds, making false state-
2 No. 17-3277
ments to Congress and the Federal Elections Commission,
and filing false tax returns. The grand jury charged Schock
with filing false or otherwise improper claims for reim-
bursement for his travel and furnishings, and with failing to
report correctly (and pay tax on) those receipts that count as
personal income. Details do not maaer to this appeal.
Schock moved to dismiss the indictment. He contended
that the charges are inconsistent with the Constitution’s
Speech or Debate Clause and with the House of Representa-
tives’ constitutional authority to determine the rules of its
proceedings. The district court denied the motion, 2017 U.S.
Dist. LEXIS 174830 (C.D. Ill. Oct. 23, 2017), and Schock imme-
diately appealed.
The Speech or Debate Clause (Art. I §6 cl. 1) provides:
“for any Speech or Debate in either House, [Members of
Congress] shall not be questioned in any other Place.” The
Supreme Court understands this as an immunity from litiga-
tion, which permits an interlocutory appeal asserting a right
not to be tried. Helstoski v. Meanor, 442 U.S. 500 (1979). On
the merits, however, the Speech or Debate Clause does not
help Schock, for a simple reason: the indictment arises out of
applications for reimbursements, which are not speeches,
debates, or any other part of the legislative process.
Although the immunity covers commiaee investigations
and other maaers within the legislative purview, see Gravel
v. United States, 408 U.S. 606, 625 (1972), and therefore would
protect the making of each chamber’s rules about reim-
bursement, the indictment charges Schock with presenting
false claims. Submiaing a claim under established rules
differs from the formulation of those rules. Charges of the
kind brought against Schock have featured in criminal pros-
No. 17-3277 3
ecutions of other legislators, and Speech-or-Debate defenses
to those charges have failed. See United States v. Rostenkowski,
59 F.3d 1291, 1302–03 (D.C. Cir. 1995); United States v. Biaggi,
853 F.2d 89, 104 (2d Cir. 1988); United States v. James, 888 F.3d
42 (3d Cir. 2018). We have nothing to add to the analysis in
these decisions. See also United States v. Brewster, 408 U.S.
501, 528 (1972) (“The Speech or Debate Clause does not pro-
hibit inquiry into illegal conduct simply because it has some
nexus to legislative functions.”).
Schock’s principal argument rests on the Rulemaking
Clause (Art. I §5 cl. 2): “Each House may determine the
Rules of its Proceedings, punish its Members for disorderly
Behaviour, and, with the Concurrence of two thirds, expel a
Member.” The rules about reimbursable expenses were
adopted under this clause and, Schock insists, because only
the House may adopt or amend its rules, only the House
may interpret them. Ambiguity in any rule (or in how a rule
applies to a given claim for reimbursement) makes a prose-
cution impossible, Schock concludes, because that would re-
quire a judge to interpret the rules.
The foundation for Schock’s argument—the proposition
that if Body A has sole power to make a rule, then Body A
has sole power to interpret that rule—does not represent es-
tablished doctrine. Microsoft Corporation has the sole power
to establish rules about how much its employees will be re-
imbursed for travel expenses, but no one thinks that this
prevents a criminal prosecution of persons who submit
fraudulent claims for reimbursement or fail to pay tax on the
difference between their actual expenses and the amount
they receive from Microsoft.
4 No. 17-3277
Or consider reimbursement rules promulgated by the
President for federal employees. Again no one thinks that
the Executive Branch’s power over rulemaking makes it the
rules’ sole interpreter. Judges regularly interpret, apply, and
occasionally nullify rules promulgated by the President or
another part of the Executive Branch, as well as statutes en-
acted by the Legislative Branch; why would reimbursement
rules be different? That each House has sole authority to set
its own rules does not distinguish rules from legislation; the
two Houses acting jointly have authority to determine the
contents of statutes (overriding presidential vetoes if neces-
sary), yet a big part of the judiciary’s daily work is the inter-
pretation and application of these enactments. Yellin v. Unit-
ed States, 374 U.S. 109, 114 (1963), says that the rules of Con-
gress are “judicially cognizable”, which implies a power to
interpret and apply them.
We need not come to closure on the question whether
there is something special about legislative rules—as some
courts have held, see United States v. Durenberger, 48 F.3d
1239 (D.C. Cir. 1995)—unless we have appellate jurisdiction.
Otherwise final resolution of Schock’s arguments must await
an appeal from a final decision, should he be convicted. The
Supreme Court has not held that arguments based on the
Rulemaking Clause may be presented on appeal before final
decision. Four courts of appeals have concluded that crimi-
nal defendants may take interlocutory appeals to make ar-
guments about the separation of powers. See United States v.
Rose, 28 F.3d 181, 185–86 (D.C. Cir. 1994); United States v.
Claiborne, 727 F.2d 842, 844–45 (9th Cir. 1984); United States v.
Hastings, 681 F.2d 706, 708–09 (11th Cir. 1982); United States
v. Myers, 635 F.2d 932, 935–36 (2d Cir. 1980). But those deci-
sions do not persuade us on that broad proposition.
No. 17-3277 5
Our reason can be stated in one paragraph: Neither the
separation of powers generally, nor the Rulemaking Clause
in particular, establishes a personal immunity from prosecu-
tion or trial. The separation of powers is about the allocation
of authority among the branches of the federal government.
It is an institutional doctrine rather than a personal one. The
Speech or Debate Clause, by contrast, sets up a personal
immunity for each legislator. The Supreme Court limits in-
terlocutory appeals to litigants who have a personal immun-
ity—a “right not to be tried.” No personal immunity, no in-
terlocutory appeal.
The link between a personal immunity and an interlocu-
tory appeal in a criminal prosecution was stressed in Midland
Asphalt Corp. v. United States, 489 U.S. 794 (1989). A criminal
defendant contended that public disclosure of grand jury
materials spoiled the prosecution and insisted that it could
appeal from the rejection of that contention because a con-
viction at trial would render harmless any grand jury viola-
tion, so if the right was to be vindicated that had to occur be-
fore trial. But the Justices unanimously held that an immedi-
ate appeal is forbidden by the final-decision rule, even on the
assumption that this would mean no appellate consideration
of the claim. That is so, the Court held, because the right
does not entail an immunity from prosecution. The Court
distinguished between rights that entail the dismissal of the
charge (such as a contention that the indictment does not
state an offense) and a right not to be tried. The fact that a
right is vindicated by dismissing a charge does not imply a
right not to be tried.
To show this, the Court relied on United States v. Mac-
Donald, 435 U.S. 850 (1978), which held that a claim based on
6 No. 17-3277
the Speedy Trial Clause must await the final decision, even
though such a claim is vindicated by dismissing the indict-
ment, and United States v. Hollywood Motor Car Co., 458 U.S.
263 (1982), which held that a claim of vindictive prosecution
must await the final decision, even though it too is vindicat-
ed (if successful) by dismissing the indictment.
Even when the vindication of the defendant’s rights requires
dismissal of charges altogether, the conditions justifying an in-
terlocutory appeal are not necessarily satisfied. In MacDonald, for
example, we declined to permit a defendant whose speedy trial
motion had been denied before trial to obtain interlocutory ap-
pellate review, despite our recognition that “an accused who
does successfully establish a speedy trial claim before trial will
not be tried.” … This holding reflects the crucial distinction be-
tween a right not to be tried and a right whose remedy requires
the dismissal of charges. … The former necessarily falls into the
category of rights that can be enjoyed only if vindicated prior to
trial. The laaer does not.
458 U.S. at 269. See also Midland Asphalt, 489 U.S. at 801:
“One must be careful … not to play word games with the
concept of a ‘right not to be tried.’ … [A]ny legal rule can be
said to give rise to a ‘right not to be tried’ if failure to ob-
serve it requires the trial court to dismiss the indictment or
terminate the trial. But that is assuredly not the sense rele-
vant for purposes of the exception to the final judgment
rule.”
Of the four decisions permiaing separation-of-powers
arguments to support an interlocutory appeal, only Rose
postdates Midland Asphalt. Yet Rose did not mention that de-
cision. Rostenkowski and Durenberger, which follow the juris-
dictional holding of Rose, do not discuss the difference be-
tween institutional and personal rights. Myers postdates
MacDonald, which it does not mention.
No. 17-3277 7
Hastings speaks of the separation of powers but is best
read as addressing a claim of personal immunity. The de-
fendant, a federal judge, contended that he had a right not to
be tried for any crime until he had first been impeached by
the House and convicted by the Senate. The court of appeals
held that there is no such right, but if there were one it
would fit the mold of Helstoski, which allowed an appeal of a
claim based on the Speech or Debate Clause. Claiborne, too,
involved a claim by a federal judge to a personal immunity
from prosecution while still in office. Only Rose and Myers
present institutional separation-of-powers defenses, and nei-
ther of those decisions is compatible with MacDonald, Holly-
wood Motor Car, or Midland Asphalt.
Schock maintains that the collateral-order doctrine of Co-
hen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949),
permits this pretrial appeal because it presents an issue in-
dependent of the merits, too important to be postponed, that
cannot be vindicated on appeal from the final decision. Yet
Schock’s position can be vindicated on appeal from a final
decision. Just as in MacDonald, Hollywood Motor Car, and
Midland Asphalt, the fact that a victory for Schock on this
contention would lead to the dismissal of charges does not
mean that it entails a “right not to be tried.”
Midland Asphalt observed that “[w]e have interpreted the
collateral order exception with the utmost strictness in crim-
inal cases.” 489 U.S. at 799 (internal citation and quotation
marks omiaed). See also Mohawk Industries, Inc. v. Carpenter,
558 U.S. 100 (2009) (extending that strictness to novel collat-
eral-order arguments in civil cases). Midland Asphalt identi-
fied only three topics as within the scope of the collateral-
order doctrine in criminal cases: release on bail before trial
8 No. 17-3277
(an issue now covered by statute, 18 U.S.C. §3145); the
Speech or Debate Clause; and the Double Jeopardy Clause.
See 489 U.S. at 799, citing Stack v. Boyle, 342 U.S. 1 (1951)
(bail); Abney v. United States, 431 U.S. 651 (1977) (double
jeopardy); and Helstoski. More recently the Court allowed
interlocutory review of a criminal defendant’s objection to
psychotropic medication. Sell v. United States, 539 U.S. 166(2003). Bail and involuntary medication are independent of
the merits and unreviewable on appeal from a conviction,
while the other two situations exemplify rights not to be
tried. The Speech or Debate Clause provides, after all, that
no member of Congress may “be questioned in any other
Place” about a speech or debate, and the Fifth Amendment
says that no “person [may] be subject for the same offence to
be twice put in jeopardy of life or limb”. Arguments about
the allocation of authority among different branches of gov-
ernment do not entail such personal rights. See Raines v.
Byrd, 521 U.S. 811 (1997) (individual members of Congress
lack standing to assert the prerogatives of Congress as an
institution).
This interlocutory appeal must be dismissed to the extent
it involves the Rulemaking Clause. Because this opinion cre-
ates a conflict among the circuits about interlocutory ap-
peals, in criminal cases, based on institutional arguments
about the separation of powers, it was circulated before re-
lease to all judges in active service. See Circuit Rule 40(e).
None favored a hearing en banc.
Schock’s reliance on United States v. Bolden, 353 F.3d 870(10th Cir. 2003), has not been overlooked. Bolden accepted an
interlocutory appeal in a dispute about the separation of
powers—but that appeal was filed by the United States,
No. 17-3277 9
which may pursue kinds of interlocutory relief closed to de-
fendants. See United States v. Davis, 793 F.3d 712 (7th Cir.
2015) (en banc). When a defendant took an interlocutory ap-
peal to make separation-of-powers arguments, the court of
appeals dismissed it. United States v. Wampler, 624 F.3d 1330(10th Cir. 2010) (Gorsuch, J.). Wampler might be distin-
guished on the ground that the appeal did not depend on
the defendant’s current or former governmental position,
but Wampler shows at a minimum that the law in the Tenth
Circuit does not unambiguously allow an interlocutory ap-
peal in a situation such as ours.
Schock contends that, because we do have jurisdiction
over arguments based on the Speech or Debate Clause, we
should address his other arguments under the rubric of
“pendent appellate jurisdiction.” Yet that possibility has
been disparaged by the Supreme Court, see Swint v. Cham-
bers County Commission, 514 U.S. 35, 43–51 (1995), and what-
ever scope it retains after Swint is limited to compelling situ-
ations in civil cases. Cf. Breuder v. Board of Trustees, 888 F.3d
266, 271 (7th Cir. 2018). The reasons that Midland Asphalt
gave for a strict application of the collateral-order doctrine in
criminal cases apply equally well to a request that we enter-
tain pendent appellate jurisdiction. In Abney the Court stated
that legal defenses other than personal immunities could not
be added to interlocutory criminal appeals. 431 U.S. at 662–
63. It did not employ the phrase “pendent appellate jurisdic-
tion” but effectively foreclosed its use in criminal prosecu-
tions.
If Schock is convicted, he may assert his Rulemaking
Clause arguments on appeal from the final decision. Similar-
ly, he may argue that the Rule of Lenity prevents conviction
10 No. 17-3277
if the House rules about reimbursement are genuinely am-
biguous as applied to his situation.
The district court’s decision with respect to the Speech or
Debate Clause is affirmed, and the appeal otherwise is dis-
missed.