Former Rep. Schock in legal battle with DOJ over records

Former Illinois GOP Rep. Aaron Schock has been locked in a bitter five-month legal battle with the Justice Department over control of thousands of pages of records from his tenure in Congress, including threats to throw him in jail for contempt if he didn’t comply, newly unsealed court documents show.

Schock’s defense team has argued that the ex-lawmaker has a right under the Fifth Amendment not to incriminate himself by turning over some of the records and has sought immunity from prosecution before agreeing to do so.


Schock’s lawyers also argue that under the Speech or Debate Clause — a constitutional privilege granted to lawmakers and aides for legitimate legislative activities — Schock needs more time to evaluate what records he gives federal investigators or whether he will seek to withhold them.

Attorneys for the House of Representatives have backed Schock as well, filing a motion supporting Schock’s position that he controls any records from his congressional office. Both Schock and the House general counsel’s office argue that Schock personally owns the records from his service in Congress, as has long been both the legal position and practice for former members and senators.

“We are pleased that the records released by the court illuminate for the public that Mr. Schock was willing to risk contempt to challenge a legal position by the government that flies in the face of 200 years of practice by the House of Representatives,” said George Terwilliger, Schock’s attorney, in a statement. “It was an unprecedented move to attempt to have a former member of Congress held in contempt for asserting constitutional rights attached to the records of his congressional office and in doing so the government asked too much and went too far. It is important to note the U.S. House of Representatives independently took a position consistent with the position Mr. Schock had previously advanced.”

Federal prosecutors, who are seeking congressional and campaign records from Schock going back to 2010, initially won a ruling that Schock must provide the documents they are seeking, but a federal judge later partially reversed that decision.

Federal agents seized some records from Schock’s fundraising committees, and he has agreed to turn over certain personal records to prosecutors.

Any records from Schock’s congressional office, however, remain under dispute.

The arcane legal fight — which deals with whether a “collective entity” or Schock himself controls his congressional records — could have a huge impact on what, if any, criminal charges Schock may face.

Schock, 34, resigned from Congress on March 31 after POLITICO revealed that he had received tens of thousands of dollars in questionable travel reimbursements.

Even before he stepped down, subpoenas for Schock had been approved by a federal grand jury in Springfield seeking the campaign and congressional documents, according to a court filing by U.S. Attorney Jim Lewis. Schock was told to turn over all his records and appear before the grand jury the following week.

Schock’s lawyers fought the subpoena and filed a motion to quash, arguing it was unreasonable for him to comply with them. They noted Schock didn’t receive the subpoenas until March 31, the day he left office.

“The subpoenas contained extremely broad requests for five years of records, including ‘[a]ny and all financial, campaign or political fundraising, and accounting records, in electronic form or otherwise, that in any way relate to Congressman Aaron Schock or Aaron Schock individually’ and ‘[a]ny and all financial records, in electronic form or otherwise, that relate to Congressman Aaron Schock’s Members’ Representational Allowance … and any and all documents and records relating to Aaron Schock’s travel,’” his defense team stated.

Schock argued several points — he did not have possession of the congressional records in question; the Illinois Republican needed time to review them once he got them in order to determine whether to assert any privilege claims; and a full review of all documents related to his congressional service would take “thousands of hours” and cost “over a million dollars.” Schock’s lawyers noted that he was unemployed now and said such a request wasn’t feasible for him.

As of June 30, Schock still had $2 million in his reelection campaign that he was using to pay his defense team.

After a legal back-and-forth, Schock was ordered to turn over his congressional records by July 6 or face a contempt charge.

That order was later partially set aside, but now the battle is over whether Schock controls the documents from his congressional office — as both he and the House general counsel’s office have argued — or another “collective entity” controls them and must turn them over to prosecutors, as the Justice Department claims. This goes to Schock’s Fifth Amendment right not to incriminate himself.

The government has said that it offered “limited immunity” to Schock if he would turn over the congressional documents in question, but he rejected the offer.

The grand jury has also issued a subpoena to the Clerk of the House for any Schock-related records in its possession. Those records will not be turned over until the underlying issue of who controls them is resolved.

U.S. District Judge Sue Myerscough has partially rejected DOJ’s argument, although federal prosecutors have been allowed to continue making the argument.

“The Congressional Office of former U.S. Representative Aaron Schock is most certainly not an extension or embodiment of the pursuit of the personal interests and goals of Aaron Schock,” DOJ said in an Aug. 6 motion asking the court to order Schock to turn over his congressional records. “It does not exist and has never existed to advance the personal interests and goals of Schock or any other Congressman, but rather it exists solely to represent and serve the interests and goals of the people of the Eighteenth Congressional District of Illinois. Moreover, the Office is an integral part of and indivisible from the House of Representatives and is subject to its oversight, including its rules and regulations, which further differentiates it from personal entities such as sole proprietorships.”

Schock’s defense team and Kerry Kircher — the House general counsel — say such a position would overturn long legal precedent and potentially violate the separation of powers between the executive and legal branches.

Both sides have until Aug. 21 to file legal motions on the issue, with a ruling expected soon after that.

However, the fight could drag on much longer depending on which side loses in that ruling, meaning any criminal allegations against Schock could still be months away.