April 18, 2018
from the United States District Court for the Central
District of Illinois. No. 16-CR-30061 - Colin S. Bruce,
Wood, Chief Judge, and Flaum and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge
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 matter
to this appeal.
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 Representatives'
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
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
litigation, 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
the immunity covers committee investigations and other
matters 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
reimbursement, the indictment charges Schock with presenting
false claims. Submitting a claim under established rules
differs from the formulation of those rules. Charges of the
kind brought against Schock have featured in criminal
prosecutions 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 prohibit inquiry into illegal conduct simply because it
has some nexus to legislative functions.").
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 Behavior,
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.
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 established
doctrine. Microsoft Corporation has the sole power to
establish rules about how much its employees will be
reimbursed 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.
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
enacted 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
necessary), yet a big part of the judiciary's daily work
is the interpretation and application of these enactments.
Yellin v. United States, 374 U.S. 109, 114 (1963),
says that the rules of Congress are "judicially
cognizable", which implies a power to interpret and
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 criminal defendants may take interlocutory appeals to
make arguments 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
decisions do not persuade us on that broad proposition.
reason can be stated in one paragraph: Neither the separation
of powers generally, nor the Rulemaking Clause in particular,
establishes a personal immunity from prosecution 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 interlocutory
appeals to litigants who have a personal immunity-a
"right not to be tried." No personal immunity, no
link between a personal immunity and an interlocutory 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
conviction at trial would render harmless any grand jury
violation, so if the right was to be vindicated that had to
occur before trial. But the Justices unanimously held that an
immediate 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 ...