good morning ladies and gentlemen our first case for this morning is united states against aaron schock mr hatch morning your honor some may please the court and hatch on behalf of aaron schock the government would have this court be the first in the nation to hold that a member of congress can be sent to prison based on ambiguous port debatable interpretations of house rules so before we get there mr hatch i would like maybe just a word or two about our appellate jurisdiction for the rules part of this case because certainly the well established standard for appellate review i think easily covers the speech or debate clause that's a sort of immunity but otherwise for the collateral order doctrine one of the criteria is that something has to resolve important questions separate from the merits and i'm having a really hard time separating the merits from your rule making clause arguments they seem to be in the you in th yes your honor thank you and they again i do think there's no dispute that the speech or debate is before this court and so therefore there's two grounds on which the rule making issue can be appealable why me either directly by appellate jurisdiction i mean that's true so how can you comply with the that it's conclusive ok maybe it's conclusive i don't know it's not the judge said hundreds of times that he was going to revisit these things as the trial preceded so there's some issue about conclusiveness separate from the merits tough functionally and refutable that depends on what the what the scope say why is the rule maker certainly speak again i'm with you on speech and debate about that but why is the rule making clause that kind of privilege yes your honor and the supreme court i don't believe is considered the rulemaking aspect directly but every lower court that has considered the issue has found that it is appealable under the collateral order doctrine and that would be the rosten koski decision of the d c circuit there's not this exact issue but the miers decision from the second circuit which we cited in our reply brief i think talks very clearly about why separation of powers immunity as immunity from suit that arises by virtue of the constitutional talk about this perhaps in the supreme court's terms the cases like midland ashfall and mcdonald discussed when a an order in a criminal cases appealed how would this fit within scope of midland for dormy dong yes your honor so to go back to the point is it separate from the merits yes it is separate from the merits because i'm not asking about the collateral order doctrine in general i'm asking about two specific supreme court cases and i would suppose yes your honor so this is a case where the issues that we are raising again there and i won't get it devolve into the plot or order doctrine but the separate from the merits and like double jeopardy they're an issue that can only be addressed and it can only be vindicated pretrial and therefore that's why i think the interlocutory appellate right is so critical because if we wait to trial i would really love to have you address the meaning of those two cases in particular yes your honor and whether those two cases are saying yes that the courts or the appellate courts need to be i believe guarded about recognizing additional interlocutory appellate rights but this is a doctor and and i don't think any of the cases that have recognized this doctor and have have suggested a revision in light of supreme court cases this is a doctor and that is arises from the separation of powers and it's separate from the merits of the case but then let me just say i mean looking at midline asphalt it  appeal hinges on whether it's a right not to be tried even under the d c circuits roston koski case if you go through the latter half of that opinion they're looking at each other trying to seize this sam figure was his and hers is clear enough to put it in the positive way that we can go forward it finds about half of them are clear enough to go forward and find some of them are not clear enough to go forward so that's pretty hard for me to characterize as a right not to be tried in the same sense that double jeopardy if you can show that you've already once been put in jeopardy for something then that's it you're finished in your honor that's exactly right rostenkowski went through the indictment it found specifically delegated constitutional authority to do that that's a very broad way of putting that but i want to make sure in the answer judges are prox question before we sign into these other matters yes right and again i think either under the collateral order think i know the supreme court's views about that but if you have anything to say about those two cases i would appreciate your well yes your honor and i'll try to answer the core with is that one of the issues we raced up with the district court's decision is that i think it was in or the yes the district court did leave it open to come back to these issues later in the case depending on the proof but quite clear about that said if you if you start straying into whatever the degree of ambiguity is and i think there's a lot to be said about that but if you the court said if you start strange and foreign to this zone then i'm going to cut you off and then you then there will be a m related limitation and i think to relevant points to that your honor one is that of course if you have to go that far before deciding then you have already gone to trial and the immunity that arises from may not be found liable if in fact you know they're acting within the scope of their immunity well and that brings me to the second point which is that i don't believe we have a disputed issue fact or honor to that to the point granted it's what we have is a question about whether these house rules are going to be utilized in this case but you know that i'm going to just jump ahead then and say your your view is that we need to it's i'm not mistaken is that we need to in a sense assumed that the meaning of all of the house rules is exactly what mr schock says it is and then ask ourselves how much of this indictment survive because surely he can't get anything better than his own reading of the rules and i'm not sure that that using the rules as a basis of liability is the same thing is using the rules as a piece of evidence in a procedure and i'm also not sure why you didn't talk through all about ambiguity here at all about the supreme court's decision and heckler against cheney which does address the situation where rule is so ambiguous that there are only full discretion in the office or in that case executive officer so if that's what we're talking about with ambiguity this case looks quite different but in your hon a couple answers to that one that the i think there's no doubt that these rules are front and center in this case because not as a matter of evidence for the tax counts and the f e c counts well yes for the yes for all of the counts because the way the indictment is structured is that has these beginning seventy four counts that are then incorporated specifically by reference and every ensuing count they're not incorporated into the tax counts  by reference but i believe there's no dispute that those tax counts are nevertheless going to depend on these proceeding allegations and that you're a few that congress the house or the senate that the house let's say can pass a rule saying we can give a million dollars to each representative but that representative does not need to report that million dollars on his tax return can congress does is that is the power standard that can be adjudicated without reference to the house rule but you got a house you'll get the million dollars without reference to the house rule that's where it came from right that the house rules may nevertheless be relevant in a case if they are necessary for adjudication of the case this case i think i've heard so let's stay with that for just one minute so you've just agreed that the house rule that i've postulated just as a hypothetical would be relevant to the case and i think you just said that the person would not be entitled to decline to report that million dollars to the i r s because there's a statute that says you have to report all income maybe you've got to adoption maybe you have other things that's later on but you've got to report so i don't see why this case isn't the same there are tax counts the house rules are relevant to the existence of the tax counts but the house rules at the end of the day do not determine whether or not anybody clued in mr sha'ath violated the internal revenue code well i think your honor that it may depend in this respect because under the tax code of course you need to report income you don't necessarily report reimbursement for expenses and things like that and so because of the front end of this indictment i think so much is focused on things that were submitted for reimbursement from there are other things for example that i'll just call it let's say use of funds i want to use a neutral term use of funds from the various campaign funds and it's not uncommon to see cases where people are charged that that's part of their income it's an issue i mean we don't know the answer to these things but it's an issue and i don't see why the government just because there's a house rule floating around in the background somewhere can't pursue that it it is those are the only know what i get what i what i'm saying is that i believe if you look at the indictment that they're using the same material that is protected immunize conduct in the mileage counts i mean they identify all this alleged activity and then that flows throughout the entire indictment and though not specifically import rated into the tax counts they've not disputed i believe that they intend to use the exact same rules and attack they said in their it let's wait and see for all you know in the tax counts having read the district court's opinion the government the government may not put all of that evidence on the table there's nothing wrong with an indictment putting more in the government's can you say and i think well a couple points about that one the government has said repeatedly and including to this court that the house rules are necessary to its case and not necessary as to anything specific but necessary into the overarching things like proof of knowledge intent to  and i think it's notable they try to defend it on appeal by saying well maybe things like the amount of documentation that supported the mileage which is in paragraph twenty two of the indictment is a core allegation that there was insufficient documentation even though th house accepted all these vouchers well but so let's take the mileage for a minute i see two possibilities and i don't have enough facts in front of me right now to know which we're really going to talk about one possibility is that he's put in for mileage and if you do a google math calculation of the miles from eight of the hero over the course of a year maybe you'd wind up with you know ten percent less in the way of miles and he had but that's probably non material because maybe took a detour to go to a restaurant or something the other possibility is that the odometers on all of the cars that he says he used  one hundred fifty thousand miles short of what he put in and it's just not there and i don't know that that has anything to do with google maps or how he drove so i think there are facts down the line pretrial but and i will just say though it's been a very very there's a series that would be very troublesome you know if you put in for one hundred fifty thousand miles more than you even physically drove on the vehicles that that is one stated in this indictment and there are many other allegations that are immunised conduct in our position if you can't put all that together so it through the entire indictment and then pass muster now by saying well you could be surplusage maybe it'll you know come in but at the same time something else and why is it the courts can interpret executive branch rules but not legislative branch yet yes your honor thank you for that question we and this is i think well maybe help the court you know we take no issue with the prospect that house cannot be used to support a prosecution of a member of congress but nonetheless the rules are of course they're being used as evidence in wire fraud and mail fraud and election you know  light whether yes but that's what that's what the decision say if they're being used as evidence and the interpretation there's an it's a debatable or an ambiguous interpretation of the rule and on the one side is the government's theory of prosecution but on the other side is an interpretation consistent with innocence then it's not just a simple and the count must be dismissed that's not a question of evidence for a jury it's a question for the court and i think it's shocking that the government says we can just hand i soon they plan to hand these rules to the jury and maybe you get twelve different interpretations back there and who knows whether the law was followed or not and that i see i mean i heard a lot of time if i could reserve my time of  the united states let me start with the issue of the sports jurisdiction over the rulemaking clause claims the supreme court has been very clear that there was a very limited number of issues in a criminal case that can be appealed pretrial one of those we don't dispute is the speech or debate clause double jeopardy is sort of the classic example but as this court said in the middle of that her excuse me the supreme court said in the middle and asshole case there's a crew distinction between a right not to be tried a right whose remedy requires the dismissal of charges and in this case looking at rostenkowski which is the broadest interpretation that any court has taken of the protection that's afforded to house rules even  reasoning doesn't support its jurisdictional hold because roslin koski simply said you need to strike those allegations in the indictment that referenced ambiguous house rules simply striking allegations in the indictment is very different than saying that the member of congress is actually immune from prosecution and has a right not to be tried moreover it's more than just a right not to be trial judge just to interject for a second obviously mr sha'ath would like a lot more things stripped from th a refusal to strike certain charges from the indictment is to take an appeal at the back end that's correct your honor and that is similar to other important rights such as the speedy trial clause that was the mcdonnell case the judge easterbrook referenced vindictive prosecution the court in hollywood motor  car said the doctor prosecution also suggested the unconstitutionality of a statute these are all very important rights and in the middle of last fall there was a breach of grand jury secrecy these are important rights that yes it would be nice for example  statute is unconstitutional if the defendant didn't have to go to trial but the court has said that that's something that you can seek review of after conviction and he doesn't he's not entitled to pretrial review of that and moreover it's not just a right not be charged or not to be brought into court but the supreme court is also said and will versus how it which was cited in the defense brief but it must be them not the mere avoidance of trial but avoidance of a trial that would imperil a public interest and here although certainly separation of powers concerns are important we're not not disputing that but the there is no constitutional right and this gets kind of to the merits holding of rosslyn county there is no constitutional right to avoid trial where the rules the house of representatives or that of the senate are merely introduced as evidence and that's why even if they could be construed as a right not to be tried it's not a right to try that implicates some important right or some constitutional immunity so if i may then turn to him i'm missing something here why would the rules ever be introduced as evidence you don't introduce the internal revenue code as evidence in a criminal case the judge presumably will tell the jury what the rules are but the rules are not themselves evidence am i missing something your honor per i don't know you're missing something but the distinction is that in the case of the internal revenue code for example it is the code itself it provides the standard of criminal liability in this case the standard of criminal liability is provided by the wire and mail fraud statutes false statement statutes etc the rules themselves this is it so so what if somebody but we don't need to get into this but if somebody makes a misrepresentation under a federal regulation and is prosecuted for wire fraud one doesn't introduce the regulation as evidence the judge will tell the jurors what the regulations require your honor that is correct if it's if it's a matter of where the criminal liability is premised this some of the rules in question or at least some of the activity of drill down and just say some of the things that mr schock allegedly did such as furnishing his off his d c office for a large amount of money he points in his brief to some rules that make it seem that these were permissible expenditures in other rules that seem to point in the other direction or so he argues so is it your idea that the district court judge would simply tell the jury well there's this rule about buying furniture for the d c office that says rugs are ok and this other rule that says drugs are not ok it's up to you jury to decide whether buying an expensive oriental rug for his office was out of bounds and help me out on this your honor i don't think that it would be exactly that what i think the district court would do would instruct the jury and this is again common in medicare fraud cases would instruct the jury that the rules are not themselves to the violation of the rules themselves is not a violation of the law that would be an important structure but within further say that they were introduced merely to prove his intent and the materiality of his false statements and what would happen in this case that he certainly he's he's raised the rules that i think he would like to introduce in his own defense with especially with respect to the photography counts and the it would not be a chandelier to i think me he sees making a big argument about what's of nominal value and what isn't and maybe five thousand dollars is just nominal for some people yes your honor i think it would be important for the district court to make it clear to the jury that the question before it is not necessarily it is not whether or not he actually violated the house regulations in that or in the handbook but rather whether or not he would it cetera but the regulations are simply there as evidence to show materiality and his intent the fact that he was on notice that in fact he had an obligation to report his mileage accurately us etc so i mean at the mileage is struck me is a little different from the french or because the mileage reminded me of the part of the rossum koski case where the d c circuit says you know submitting souter's for the post office and getting money in return is just so far out of bounds that nobody could think that was a from a simple thing to do and if as i understand the government to be alleging you've submitted requests for reimbursement for one hundred fifty thousand more miles than you drove i don't know why we should construe the house rules to say that that's permissible right your honor and i saw it like that so there may be some things that are easier to see as distinct from the house rules than others correct i think that is i think that is true your honor it is important though even with respect to the mileage counts the government believes that the rules are extremely helpful to prove the materiality and his intent for example just just the fact that the d c circuit recognizes in the durenberger case just the fact that there is an obligation to report mileage correctly that must be actual miles traveled that is only found in the handbook so the if we were to try and approach a trial without any reference to the handbook essentially cases but even if even if we didn't i mean the district we're obviously would have discretion whether or not to actually allow the introduction and but the district court could simply instruct the jury or the parties could perhaps stipulate to what the requirements of the rules are but i think this is important as well being the defense posits that we want to go around prosecuting people using ambiguous rules were not again to answer drug use regular question we're not seeking to promise criminal liability on the rules but the dition really  were we don't think that the most vague or ambiguous rule out there would actually be useful and or should be introduced in a trial so they pay for it gives the example of a rule that said do nothing improper i think a district court would be well within its discretion and perhaps would have to confusing the rules of evidence with the rule of lenity that when there is genuine ambiguity it would not be treated as a crime and that that's a different question from what goes into evidence your honor i hope i'm not confusing the two that the rule of lenity applies to the statutory to the statute of conviction or i it has been applied to regulations as well but but here we're because we're using them as evidence the rule of lenity doesn't apply there's issue of the district court has discretion to determine whether or not a rule is actually relevant and and helpful to the jury in making a determination respect to intent in materiality and for example in the jefferson case in the eastern district of virginia court excluded the congressional oath and certain rules on the basis that they weren't relevant and weren't helpful to the jury but admitted others on the basis that they work but again we're only seeking to use the rule serious evidence or not as to the premise liability upon them much other kinds surely if you're using this evidence sometimes we see a situation where maybe you refer to the rules but it's really the contact underlying whatever  made you think about rule whether it's the driving or whether it's turning to the campaign fund to buy certain vehicles or whatever the underlying conduct is surely is the the main point of the case absolutely ron i completely agree with that and i think that was what the distinction that the d c circuit or purposely drew in the durenberger case and earned burt said that but the question really isn't whether or not he would be entitled to reimbursement for every single dollar that he submitted the question is one of materiality and enduring burger which proceeded rostenkowski by a few months and durenberger the court said that the rules are enough to show that you had a an obligation to report these things honestly he had to be honest and in this case that's what we're seeking to use the rules for show that he had an obligation to report these things honestly we're not again seeking to we would prefer to have this case be about his underlying conduct and not primarily about any particular but you sound approach and i think the problem with the rossum koski framework again this  sort through the the the potentially relevant rules those that are referenced in the indictment the defendant brings up rules that are referenced in the indictment to to determine whether or not the allegations the bare allegations in the indictment would are clearly clearly fall within the regulations and so so here's here's something that i have been trying to think about certainly there are some as i mentioned madden mentioned heckler there are some rules from whatever branch of government that they're just very they they don't really tell you anything and i think certainly one of his rights is not to be not to have such a rule used to show that he violated the mail fraud or the wire fraud statute or any of the other statutes that th y brought up because does because any behavior under rule that is that ambiguous might be fine so what's where's the notice where's anything there are other rules that seem to be more solid you know like don't lie when you submit your mileage surely that must be a rule of the house yes i can't fathom it so that it seems to me you know if you the government would have to show that he knowingly submitted the wrong number and that it's wrong enough it's not my little detour to go to a restaurant discrepancy between various rulings but the various trips but wrong enough to that there's no doubt that it's there we go but the but the but i think the important thing is that the this is not as a constitutional matter there is not a constitutional prohibition on this court looking at the rule of congress and trying to determine its meaning where that rule is not clear beyond a reasonable doubt and the the problem with rostenkowski is it says that this court can't even begin the process of interpretation is essentially what it said if it actually says two things to me you know when it states the rule to begin with it is much it is a confusing opinion in many respects because it's unclear exactly what the standard is we think that these rules here on invade us under either standard but certainly beyond a reasonable doubt standard that the court applies later in its opinion is it's far too high of a threshold that's essentially saying that this court can can never resolve any sort of low level ambiguity the way that it would in a statute or in in another regulation right so what i'm particularly looking at is where they say we know first that we agree with the intuition constitutional question the defense points out that the smith case that we rely on heavily our brief didn't actually address an ambiguous rule and perhaps it wasn't to be fair the court said that it found the rule clear from the meaning clear but it was directly contrary to the senate's interpretation and i think part of the underlying premise of rostenkowski that is wrong is the view that the courts cannot take positions on the meaning of a house rule that might conflict with that of the enacting  rostenkowski where the court said were court cannot be confident this in and that its interpretation is correct there is too great a chance that it will interpret the rule differently than what the congress itself in that circumstance the court would be effectively making the rules and i think smith just completely undermines that premise of rostenkowski and says the court in smith was willing to interpret a rule directly contrary to the views of the senate here the house hasn't even weighed in on the meaning of these rules there hasn't been any sort of authoritative interpretation by the house and in the ordinary case i think the government would try to align its understanding of the of the house regulations with the house as otherwise you'd certainly have problems with the evidence you're a value of the regulations of the house interpreted them in a different way the probably not in that exact language right should the house rules be treated differently your honor that's that is a difficult question that the government hasn't weighed in on in a prior was i think i think deference would perhaps i think deference would likely be appropriate under under the our case from the supreme court the way that the court has interpret applied this in the past i think deference is likely appropriate and beyond that i really can't say there's not any case law on it either way but if i say that all legitimate expenditures and of case your honor we don't think that's appropriate first of all that the have house approval when it wasn't presented with all the facts and in fact they were false statements included in the vouchers the house approval really means nothing in that instance but we would contemplate in the ordinary case of the house was willing to do so as they were before the grand jury here we would call witnesses from the house of representatives and in fact we had house witnesses testified in the grand jury now obviously in the sort of segues to the speech or debate which i'd give you if i could  house does can in certain circumstances assert that it has a a a privilege under the speech or debate not to not to appear and answer questions about its internal processes of approving these vouchers etc and our position thus far has been to respect the assertion of that privilege however what mr shock would have this court do is to own the speech or debate issue is to go far beyond what the house of representatives to suffer examples amicus which is that the house side of the voucher in process is protected and have th court say that in fact his submission of a voucher happens to be false voucher is also protected by the speed debate clause and that is something that no court has ever done and in fact many courts have concluded that false statements for example in financial disclosure forms we  recognized that's the speech or debate clause did not protect rostenkowski conduct in that case so his speech or debate argument which is the best argument for him because it actually doesn't title to move to immunity but is reviewable pretrial it would valid brewster which you've said that it must be something that's core to the functions of the congress and this is certainly not for those reasons that we ask the court to affirm thank you thank you mr hatch the government has asserted today the power to try on a member on its own standards and interpretation of rules a member of a co equal branch and the only remedy according to and it's very unclear to m still when it's a trial it is the judge is the judge posed to interpret the rules for the jury do they just get handed the book of rules under the government's view i'm not sure but however it is these rules are to be interpreted to the jury and then the members only recourse is an appeal af to the fact and of course these are members who are performing the functions of a coordinate branch of government and so as to the stop the supreme court in clinton against jones i'm going to com i mean coordinate branches of government have to abide by the law right from from being subject to a deposition your honor i think it was the devastation but i thought you agreed earlier that the house couldn't just exempt members of congress from the general criminals at all as either certainly not there's the brewster case we take no truck with that but what i'm but what is the difference is when they're reaching in and creating standards that the house may never have sat for itself and using those to prosecute other to think that the house said we actually only require partial honesty we don't require honesty all the time or in all situations when when we're dispersing fines your honor any i'm not going to i'm not going to argue about the honesty what i am going to argue about is everything else they build up in around that that is contained within this indictment for example mr placer just sat that their house requires actual models to be reported and that is stated in the indictment as an interpretation of how standards that's paragraph twenty two but you won't see that quoted the house does not do that by rule it allows for mileage reimbursement but it doesn't say whether it's the actual sale literal is any of this different from say the rules of the executive branch the department of justice has rules for reimbursable mileage and all as soon as prosecuted violations that the judicial branch has such rules you know it was less it was about a year ago that the judicial branch referred one of its own judges to the department of justice for criminal prosecution for making false mileage cla there doesn't seem to be anything peculiar to congress here and no and we take no truck with those your honor the reason is that if you're premising your prosecution on a federal criminal law and if you want to use a clear rule of a coordinate branch whether it be the executive or the house then that's a prosecution that can proceed the problem with this prosecution and that constitutional authority flows from the house's ability to make the rules for its proceedings  so i asked whether there was anything different the rules for the judicial branch are made by the judicial conference the rules for the department of justice are made by the attorney general you know there was always discretion in the making of the rules one might as well say congress can write any tax statute it wants and therefore no tax statute can be enforced by the judicial branch because that impinges on congress ability to write down what he wants but you wouldn't say that no no your honor i certainly wouldn't and if i may i'm over my time but please thank you on or no we certainly would not say that a clear rule that's applied through a criminal statute can be applied the problem with this indictment is whether in it whether it be the executive or the house although clearly there's a house authority they have the authority to make the rules for their own proceedings and another branch cannot in the guise of interpretation create a rule that that