SCOTUSblog by Amy Howe 11/28/2022
ARGUMENT ANALYSISThe Supreme Court appears poised to reverse the conviction of a powerful New York political aide who took money in exchange for helping to facilitate a real estate development. Joseph Percoco was sentenced to six years in prison for violating a federal fraud law that makes it a crime to deprive members of the public of the intangible right to “honest services.” But justices of all ideological stripes were concerned on Monday that upholding the conviction of Percoco, who served as the manager of former Gov. Andrew Cuomo’s re-election campaign when he took the actions that led to his conviction, could have far-reaching effects for other private citizens – most notably, lobbyists.
In 2014, a developer paid Percoco $35,000 for his help to avoid having to enter into a “labor peace agreement” with local unions. Percoco urged the head of a state agency to allow the development to go forward without the need for such an agreement – which it did. A few days later, Percoco ended his job on Cuomo’s campaign and returned to his former role as a senior official in the governor’s office.
Representing Percoco, lawyer Yaakov Roth told the justices that when Percoco promoted the development he was a private citizen who did not receive a salary and “possessed no legal authority to bind the state or make decisions for it.” Although Percoco may have had influence within the state government because of his “years of public service” and his “close relationship to the Cuomo family,” that influence does not create any duty to the public and cannot be the basis for a bribery conviction, Roth said.
Instead, Roth continued, a bribery conviction requires a connection to actual power – that is, someone is taking a bribe in exchange for exercising power that he officially has or expects to have soon. The power can come by virtue of the individual’s position as a government official, Roth observed, or if he has been delegated that power as an agent of the government. And when someone has that kind of power, Roth explained, he has a duty to the public that can form the basis for a bribery conviction.
Roth faced questions about how far his proposed rule would extend. Justice Elena Kagan asked about a scenario in which a public official briefly resigns so that he can take a bribe but then returns to his job almost immediately. Under your theory, she suggested to Roth, the official couldn’t be charged under the bribery statute as long as he wasn’t in public office when he took the bribe.
But even if the justices believed that Percoco’s proposed rule might be underinclusive, they were far more concerned that the government’s proposed rule would be overinclusive, turning the proverbial “revolving door” between government service and the private sector into a pathway to prison.
More:
https://www.scotusblog.com/2022/11/justices-worry-that-broad-reading-of-federal-bribery-law-could-sweep-in-lobbyists/
