Prosecutors under scrutiny in Schock case

Prosecutors under scrutiny in Schock case
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The FBI’s decision to use a staffer to then-Rep. Aaron Schock (R-Ill.) as a confidential informant could complicate the prosecution’s case against him, Washington defense attorneys told The Hill.

Lawyers called the use of the informant troubling and said it raises questions about constitutional provisions that mandate a separation between government branches, among other things. 

“It threatens the core architecture of our system of government. It’s not something that people should gloss over here,” said Steve Ross, the co-leader of the congressional investigations practice at Akin Gump Strauss Hauer & Feld.  

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The investigation into allegations that Schock had misused both government and campaign funds began in mid-March 2015. By the end of that month, he had resigned from Congress and left Capitol Hill. Schock was indicted last year on 24 counts, and his trial is set for this summer.

However, details about how investigators collected information about Schock became public for the first time in a court filing from Schock’s lawyers last week. In that filing, they requested more information about how investigators directed the informant, who recorded conversations and took documents from the then-lawmaker’s district office in Peoria, Ill.

“Let’s address the overall feel of it, this kind of thing is very unusual — it’s very unusual to use someone on congressional staff to act in an undercover capacity at all, much less to have them pilfering documents,” said Solomon L. Wisenberg, the co-chair of the white collar practice at Nelson Mullins Riley & Scarborough. 

The recordings from the informant, obtained by the defense through the court discovery process, allegedly contain conversations between Schock staff and the attorney representing them, along with attempts to “deliberately elicit attorney-client privileged information.”  

The informant, who worked in Schock’s district office and is not named in the court documents, had been subpoenaed in the government investigation. He was the first person interviewed by federal investigators, according to the court filing.

He took documents from the office — including travel-related receipts, invoices of office purchases and a credit card statement from Schock’s personal American Express account — and gave the FBI content from another staffer’s email inbox.

Prosecutors have said they don’t plan to use some of the information gleaned from the informant at trial.

“The genius of the Constitution is the notion of there being three separate and independent branches of government. The notion that the executive branch would, in essence, plant somebody within a legislator’s office, it goes against the nature that each branch is supposed to function independently,” said Ross.

“I know there will be people who will say, if people aren’t doing anything wrong, they shouldn’t be worried about having their conversations recorded or have a mole planted in their office. But the Constitution is not built on an ends-justify-the-means basis.”

The requirements for issuing subpoenas and obtaining search warrants provide “constitutional guardrails” and allow the judicial branch oversight of executive branch activity, he added.

The government has until April 18 to respond to Schock’s lawyers’ claims and request for more information. The defense specifically wants to know more about how the FBI instructed its confidential informant to determine if investigators and prosecutors overstepped during the investigation.

Timothy Bass, the assistant U.S. attorney in charge of the case, is known for being a particularly aggressive prosecutor. Based out of Springfield, Ill., he has attracted the nickname “Badass Tim Bass.” 

Although the FBI used the staffer, and put a wire on him, it likely wouldn’t have done so without the knowledge of the prosecutor, said Craig Engle, who founded the political law practice at Arent Fox. 

“They collaborate because the FBI would not want to be the one that went rogue and wired an individual without clearing it through Justice,” he said.

Another lawyer said it’s unlikely that the use of an informant would be repeated in other investigations of lawmakers.

“I don’t see any sign that wiring up congressional staffers is going to be some Main Justice trend,” said Wisenberg, referring to the Justice Department headquarters in Washington.  “This case appears to be completely home grown … out of this office in Springfield, Ill."

One lawyer who knows Bass, however, rejected suggestions that he would do anything that skirts the law, as the defense appears to be alleging.

Bass is a “professional guy, relentless, focused, no nonsense,” said Jon Gray Noll, a Springfield criminal defense attorney who says he has gone head-to-head with Bass more times than any other person, with the exception of the public defender’s office.

“Once he gets a taste of blood he’ll pursue it to the very end,” Noll told The Hill. “But he’s professional. He doesn’t do anything improper, nor does he try to go over the line or get close to the line.”

“If and when it goes to trial, he’ll be super prepared,” he added. “Schock will be shocked.”

Washington lawyers compare the situation to other prominent criminal cases involving lawmakers, including the late Sen. Ted Stevens (R-Alaska). Prosecutors in that case were ultimately found to have withheld evidence that would have helped Stevens fight the corruption charges.  

The Schock case also harkens, they say, to the controversial investigation of former Rep. William Jefferson (D-La.), who faced bribery charges. FBI agents raided Jefferson’s congressional office after finding $90,000 in cash in the freezer at his home. While one federal court ruled the office raid was legal, a federal appeals panel largely overturned the decision later that month.

The questions about Schock’s use of taxpayer funds first emerged after a Washington Post story that described his elaborately decorated office, with a price tag of $40,000. Its designer said the motif was modeled after the television show “Downton Abbey,” though Schock's defense said the former lawmaker has never seen the show.

The Justice Department handed the former Illinois lawmaker a sweeping 24-count indictment last November, including wire fraud, falsifying Federal Election Commission filings, filing false tax returns, theft of government funds and making false statements.

“My hope is that a prosecution can go forward without the focus being on the prosecutor’s conduct, but on the conduct of the congressman,” said Engle.