Schock Treatment: How The Justice Department Violated The Constitution In Its Aaron Schock Investigation

Below is my column in the Hill Newspaper on the investigation of former Rep. Aaron Schock (R-Ill), who attracted notoriety for his use of a Downton Abbey motif for the decoration of his office.  Obviously a preference for haughty interiors should not be enough to generate a massive criminal investigation.  However, the prosecutor in this case has pursued Schock with utter abandon, including trampling over long-established protections accorded to Congress.  Regardless of the merits of the fraud allegations against Schock, the investigation raises troubling questions of constitutional law and Congress should hold hearings into the violation of Article I.

At the start of his famous poem Mending Wall, Robert Frost wrote, “Something there is that doesn’t love a wall.” When it comes to the Justice Department, that statement is particularly true this month. In the prosecution of former congressman Aaron Schock (R-Ill.), the Justice Department did not simply ignore the wall of separation between the legislative and executive branches, it bulldozed it.

In its invitation of possible fraud by Schock, the FBI enlisted a staff member to record conversations in the office, rummage through files and paperwork, and remove documents for investigators and prosecutors to search of any wrongdoing. It is an egregious violation of the protections afforded members of Congress and, if left unaddressed, would constitute extremely dangerous precedent for our constitutional system.

Schock became the subject of ridicule (including from this writer) for decorating his congressional office in the style of Downton Abbey, the series featuring the daily life of a haughty English family. Schock’s taste in staff members appears as bad as his taste in interior decorating.

While still unidentified, Bryan Rudolph, Schock’s former district manager, is believed to be the staff member who volunteered to serve as a secret agent of the Justice Department in looking for evidence of crime. As Schock’s district office manager, Rudolph allegedly recorded conversations with other staffers and rummaged through office files and emails. He copied material and taped conversations considered protected by both attorney-client privilege and constitutional protections.

Ultimately, Schock was indicted on charges that he misspent government and campaign money for his personal benefit. Putting the merits of those allegations aside, the means used in this case were shocking and unprecedented in targeting the office of a member of Congress and rifling through papers and communications. What is equally disturbing is that the Justice Department was previously chastised by the court for violating these very same protections in the investigation of a member of Congress.

In 2005, the Justice Department investigated former Rep. William Jefferson (D-La.) for bribery and other crimes. The FBI raided Jefferson’s congressional office under a search warrant and took away an array of files and documents. I testified at the congressional hearing on the raid and said at the time that it was a flagrant violation of the protections afforded members under Article I, including the protections of the “Speech and Debate Clause.”

While the Justice Department insisted that it employed a “filter team” to review documents taken from the office, such post hoc measures does not change the egregious (and entirely unnecessary) raid on a congressional office. Ultimately, the D.C. Circuit agreed and, in United States v. Rayburn House Office Building Room 2113, ruled unanimously that the Justice Department violated the constitution. The court ruled that “the Congressman is entitled … to the return of all materials (including copies) that are privileged legislative materials under the Speech or Debate Clause. Where the Clause applies its protection is absolute.”

Notably, in Gravel v. United States, the Court also ruled in 1972 that the protections of the Speech and Debate Clause extend to congressional aides. The Justice Department under the Obama administration responded to these two cases by making a congressional aide a virtual walking surveillance device for a fishing expedition in a congressional office. They took these steps in a case involving disputes over what are official and what are personal expenses for members.

Investigators spent 18 months looking for criminality but ultimately found violations of reporting and routine expenditure reports. This effort included the recording of conversations with staff who were represented by counsel and sifting through congressional material. The aide was given detailed instructions on what to remove from the office. Yet, when one investigator was asked for her cell phone to review those instructions, she said that she had “deactivated” the phone and now could not remember the password.

The Justice Department has again claimed that it used a “filter team” despite the fact that that defense failed in the Jefferson case. (The Justice Department has also insisted that it will not rely on the evidence taken from the office, though it is not clear how it may have influenced the investigation. If true, the Justice Department flagrantly and knowingly violated the Constitution and achieved nothing).

Even outside of Congress, the probable cause basis and the scope of these searches would be highly questionable under the fourth, fifth, and sixth amendments. Placed into the protected area of a congressional office, these searches are chilling examples of a total disregard of existing precedent and constitutional values.

The protection for legislative offices is one of the oldest constitutional values embraced by the Framers. They learned of its necessity from the British Crown. As early as 1541, the Parliament was invoking the protections after years of abuse at the hands of the Tudor and Stuart monarchs. For more than 200 years, presidents respected that tradition until the raid in the Jefferson case. The courts have however held the line of separation between the branches. Despite that history and case authority, the Justice Department has again searched a congressional office with utter impunity.

However, this is more important than a member with loose accounting practices and a haughty taste in design. Madison believed that the separation of powers would allow “ambition to counteract ambition.” But the only ambition shown has come from a previously unknown prosecutor in Springfield, Illinois, assistant U.S. attorney Timothy Bass. He appears to have an impressive abundance of prosecutorial zeal and an equally impressive lack of constitutional values.

There were ample places where Bass had full license to look for evidence, and apparently those unprotected areas yielded the actual evidence to be presented in this case. Had he stuck to those areas, this would be a small fraud case. Instead, Bass went to the one place where he was not permitted like a man who wanted to be a big game hunter but lacked the energy for the wild, so he shot an elephant in the local zoo.

It is certainly true that there is something in presidents “that doesn’t love a wall.” However, as the poem Mending Wall also noted, “good fences make good neighbors.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has testified multiple times before Congress on the separation of powers and other constitutional guarantees.

32 thoughts on “Schock Treatment: How The Justice Department Violated The Constitution In Its Aaron Schock Investigation”

  1. The Justice Department should never be allowed to Violate The Constitution and Oath of Office should always be upheld.

  2. To varying degrees, AG’s have become errand boys and girls for the prez that appoints them. In my lifetime, I have not seen as blatant a one as Holder. He was selected because Obama saw Holder will do anything he’s told, like the Marc Rich pardon he pushed through for Bubba. Dirty laundry will be exposed, but the MSM is perverted and it won’t be headlines.

  3. You mean the Lynch-Holder Justice Department scorched the Earth trying to take out a political opponent? Say it ain’t so…

    Strip prosecutors and judges of unqualified immunitiy, and allow them to be subject to suits in front of a dedicated tribunal. You’ll have less of this.

  4. There have been numerous stories, including published cases, detailing abuses by federal prosecutors. But they know that there will be no consequences, other than perhaps sitting through an ethics class for a few hours. If these attorneys were fired and/or lost their bar licenses, the abuses would stop.

  5. We know that prosecutorial misconduct was riff under the Obama administration. One judge went so far as to order a team of Justice lawyers to retake their ethics class. It is clear the judiciary has to be tougher on these misconduct cases. This no harm, no foul attitude just lets them get away with it again.

    1. I don’t doubt that prosecutorial misconduct has been rife in all administrations. Committed by career prosecutors who may well have been hired under previous administrations. Blaming Obama was just a bit extraneous in this case in my opinion. #ObamaDidEverything

      1. enigma – Eric Holder, who was held in Contempt of Congress and his successor, as well as Valerie Jarrett, all had a hand in this.

        1. You appear to be referencing something specific about the Obama administration, could you be more clear. I have very clear memories of Alberto Gonzales testifying before Congress that he had, “no specific knowledge” of countless meetings he’d attended and orders he’d given regarding the firing of several US Attorneys who refused to prosecute political enemies of the Bush Administration. He also came under fire for warrantless surveillance of American citizens and torture. The current Attorney General Sessions we know at best misled Congress about contacts with Russian officials, is still personally pursuing leaks in the Russian investigation despite having recused himself in a case where he could be a witness or defendant. Please be clear why you are singling out Obama, Holder and Jarrett?

          1. enigma – I am referencing Obama, et al. because they were responsible for the mess on this particular topic.

            1. I looked hard to find any reference to Obama, Holder or Jarrett in the Schlock case. I couldn’t find anything to suggest there was anyone involved other than career prosecutors. I also found that the investigation had far more to do with the decor of his office and focused on his personal business dealings with political donors which seems a legitimate cause for investigation. It’s highly possible there is no mess here, only a charge by someone with a partisan view (Turley not you).

              1. enigma – the DoJ was weaponized by Holder and kept that way by Lynch. The professor knows who knows their politics and who doesn’t.

                1. You keep saying these things generally happened but I don’t see any examples. It seems like when someone mentioned Susan Rice’s name regarding leaks (for which there is no evidence) and the right went crazy. Specifics please.

                  1. E.I.Black….It doesn’t matter to you if Susan Rice leaked unmasked names or not.
                    Your “Susan Rice is a F***ckinh Hero ( JT’s April 4th column on Susan Rice) fully explains your position.
                    Nothing enigmatic about you….llke most partisan hacks, you’re not exactly a puzzle to figure out.

                    1. I’m always glad when someone reads my pieces. I wish you’d have provided a link for others to read as well. What matters is she did not leak, it was only yet another distraction which involved Trump himself to distract from Russia a few more days. That train however is still on the track and rolling right toward Donald.

                    2. E.I.BLACK….Your worship piece about Susan Rice is in the comments secttion of JT’s April #, 20@7 column.
                      I think I already mentioned that…any,it’s one of the first comments in the thread.
                      I’m not sure how , at this point, you can say that Susan Rice didn’t laek any inmasked names.
                      There is not enought info one way or another to know.
                      Rice shot herself, and her credibilty, in the foot long before this current “unmasking” issue came up.4th, 2017

                    3. Reply box is now as wide as a therometer needle…lots of typos because of that.
                      The date of the St. Susan Rice piece by E.I.Black is April 4th…JT’s column on Susan Rice. It is one of the first comments, and gives good insight in Partisan Hack in Black’s intellectually honesty.

          2. The US attorneys in the Bush administration were fired for refusing to prosecute voter fraud cases. And the president can fire any of them, at will. In the case referenced above in Texas, the judge was so disgusted by the unathical behavior of the government lawyers that he did require they take an ethics course. Holder politicized his department and set the tone.

        2. It would appear that you are absolutely right. That’s why the Ron Browns and the Vince Fosters met such timely dismissals from life. They were intelligent enough to know things were wrong. They just weren’t sure who had the knife.

          1. One died in a plane crash, the other committed suicide for all the reasons people do. There never was anything to see there.

  6. The problem is that today’s leftist college students will be tomorrow’s judiciary. If we think it’s bad now, wait a few years….. Ayn Rand predicted it all but nobody believed her.

  7. My experience is that a majority of federal prosecutors cut square corners. But there are enough of them who don’t cut square corners to keep defense attorneys and judges plenty busy dealing with their misdeeds.

    The real problem is that, in most cases involving prosecutorial misconduct, there is no accountability. The misconduct stays in the shadows because the defendant pleads guilty or because of other reasons.

    The state prosecutors are exponentially worse as a group, although the are still plenty of straight shooters there as well.

    With respect to this particular matter, part of me is disgusted at the behavior of the prosecutor. Another part of me is perversely thrilled that some arrogant Congress Critter has received a taste of what others less fortunate in life have had to endure. That does not “justify ” what the prosecutors have done. But it might help bring about some overall accountability when prosecutors step over the line.

    1. Agree.

      Only when the “protected” suffer these abuses will they stop the abuses that the “unprotected” experience everyday.

  8. Meanwhile the former Secretary of State and Senator from NY.and presidential candidate was found to be “Not sophisticated enough to understand classified markings”.
    This what people go to law school for?
    They all seem like chef’s for peoples last meals.

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