Statutory Interpretation – Rulemaking Clause

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7^th Circuit Court of Appeals

Case Name: United States of America v. Aaron J. Schock

Case No.: 17-3277

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

Focus: Statutory Interpretation – Rulemaking Clause

Aaron Schock resigned from Congress on March 31, 2015, after his constituents responded adversely to disclosures about trips he took at public expense, 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 statements 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 reimbursement 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’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 prosecution impossible, Schock concludes, because that would require a judge to interpret the rules.

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. Chambers County Commission, 514 U.S. 35, 43–51 (1995), and whatever scope it retains after Swint is limited to compelling situations 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 entertain 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 jurisdiction” but effectively foreclosed its use in criminal prosecutions.

If Schock is convicted, he may assert his Rulemaking Clause arguments on appeal from the final decision. Similarly, he may argue that the Rule of Lenity prevents conviction if the House rules about reimbursement are genuinely ambiguous 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 dismissed.

Affirmed in part. Dismissed in part.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.