Supreme Court Appears Poised to Further Chip Away at Prosecutors’ Efforts to Tackle Public Corruption

At the center of the case is the question of whether private citizens with influence over the government have an obligation to provide the public with ‘honest services.’

AP/Patrick Semansky
The Supreme Court building, June 27, 2022, at Washington. AP/Patrick Semansky

The Supreme Court appears to be contemplating further limits on the definition of  corruption and the tools available to federal prosecutions in corruption cases after agreeing Thursday to hear the case of a former campaign manager of Governor Cuomo convicted of accepting bribes from real estate developers and others.

The case involves Joseph Percoco, who in 2018 was found guilty of accepting more than $315,000 in bribes from co-conspirators in the case, money that he repeatedly referred to as “ziti” in an apparent nod to the HBO show “The Sopranos.”

A federal court in Manhattan convicted Percoco in the “pay-to-play” scheme in which he received repeated payments from an energy company executive and multiple real estate developers in exchange for state contracts and other favors.

Percoco’s lawyers are now arguing that he cannot be guilty of the charges because he was a private citizen at the time — managing Mr. Cuomo’s re-election campaign — and not an employee of any government body.

“The notion that private citizens owe a duty of honest services to the public so long as a jury deems them sufficiently influential finds no basis in law or common sense,” Percoco’s lawyers argue.

The prosecution insisted that Percoco still had a “duty to provide honest services” to the public because of his significant influence on government and because he was likely to return to work for Mr. Cuomo’s administration at the conclusion of the campaign.

Prior to the charges, Mr. Cuomo compared Percoco to a brother, calling him “my father’s third son, who I sometimes think he loved most.”

At the center of the case is the question of whether private citizens with influence over the government have an obligation to provide the public with honest services. “Honest services fraud,” as it is known, is defined as a scheme to defraud another — in this case the public — of their right to expect those with public influence to act with good faith.

According to the Congressional Research Center, honest services fraud is “one of federal prosecutors’ most potent existing tools for combating such corruption” and “has been a source of contention between the courts and Congress for years.”

The president of the New York County Lawyers Association, Richard Swanson, argues that the Percoco case could result in federal prosecutors having fewer tools in corruption cases. The Supreme Court has rejected the theory of honest services fraud in the past, he said.

“This appears to me to be part of a continued trend to limit the federal mail fraud and wire fraud statutes,” he tells the Sun. “The Bridget Kelly ‘Bridgegate’ case is a good example of this.”

In that case, also called the Fort Lee lane closure scandal, Bridget Anne Kelly, an aide to Governor Christie, and others were accused of intentionally closing lanes on the George Washington Bridge leading to New York City from New Jersey in order to cause traffic jams and create headaches for a political rival.

In the 2020 case, the Supreme Court unanimously overturned Ms. Kelly’s conviction, ruling that while she had engaged in the behavior of which she was accused, she did not do so “to obtain money or property.”

In another corruption case, this one against Governor McDonnell, the court again unanimously ruled to overturn his conviction arguing that his action, while disagreeable, did not fall within their narrow interpretation of corruption and fraud statutes.

Mr. McDonnell’s wife had received more than $175,000 in loans and gifts, including a Rolex watch, designer clothes, and vacations, from a businessman who was advocating a tobacco-based dietary supplement.

The court argued that though the actions were “distasteful,” they did not qualify as bribery or corruption under the law.

“Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Chief Justice Roberts wrote in the decision. “The Government’s position could cast a pall of potential prosecution over these relationships.”


The New York Sun

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