But using your political influence as a private citizen is basically just being a lobbyist, Judge Neil M. Gorsuch said, and “this city is full of people like that.”
Chief Justice John G. Roberts Jr. Nicole F. Reaves, a Justice Department lawyer defending Percoco’s conviction, said the government’s arguments for prosecuting someone who does not hold public office “sound like … an attempt to erode the concept of political power. .”
Justice Clarence Thomas added that it was “rather strange” that the federal government, rather than New York State, went after Percoco. “If New York actually wanted to prosecute this activity, they had the authority to do so and the statutory basis to do so,” he said.
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The Supreme Court has grown increasingly wary of federal prosecutors pursuing public officials for conduct that some judges have viewed as the normal course of political activity.
In 2016, the court threw out the conviction of former Virginia Gov. Robert F. McDonnell (R) and his wife for accepting gifts in exchange for promoting a benefactor’s business, saying McDonnell would have had to take specific government actions on behalf of the benefactor for the conduct is unlawful. Recently, it overturned the convictions of two allies of former New Jersey Gov. Chris Christie (R) to close the George Washington Bridge to punish one of the governor’s rivals.
Yaakov M. Roth, Percoco’s lawyer, said his client “did not take an oath of public office” while working on the campaign and “had no legal authority to bind the state or make decisions for it.” What he did have, Roth said, “was influence, in his case, influence drawn from years of public service, from a close relationship with the Cuomo family and from his senior campaign role.”
But some judges still expressed concern. Although Percoco resigned as Cuomo’s deputy to run his re-election campaign, he maintained an office in the governor’s suite and attended official meetings. He took the payment from the construction company while he was a campaign manager, but called a state official days before he returned to state employment to ask him to drop a demand that the company negotiate a collective bargaining agreement.
Percoco was sentenced to six years in prison after his conviction on charges including depriving the public of the “intangible right to honest services.”
Justice Elena Kagan told Roth that “the theory of your case is basically, as long as he wasn’t in public office, you can’t impeach him under this statute.” That theory could provide a blueprint for corruption, Kagan said. She speculated about a public official who “resigns his office every time he wants to take a bribe and then picks up his office again when he has completed the bribe. And there must be something wrong with that.”
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Roth responded that prosecutors must show “a connection to official power” to prove corruption. “That must be what the agreement contemplates that you sell your official power.” At the time Percoco accepted payment from the company, Roth said he did not know he would return to state government.
Reaves said Percoco’s arguments were based on a “caricature” of the facts.
“While serving as a civil servant and after he had decided to return to formal government employment, [Percoco] accepted multiple bribes in exchange for ordering a government agency to reverse a final decision,” Reaves said.
She said the government has a three-part test to define what it means to “act” as a public official: the consent of others in the government to treat the person as a public official; an ability to order government employees to perform specific government actions; and further indications of a government role. In Percoco’s case, Reaves said, the latter includes keeping his office in a government building and attending government meetings.
Gorsuch and others were not convinced. “I wonder” where such a test will come from, Gorsuch said. “It is certainly not in the text of the law”.
Judge Ketanji Brown Jackson said she was concerned that Reaves said it was not an essential part of the test that the person return to government employment. “If the person is just lingering as a result of their previous engagement, why isn’t it just a lobbyist?” she asked.
In a separate case, the court considered the bid-rigging conviction of Louis Ciminelli and others who won a $750 million development contract as part of Cuomo’s Buffalo Billion revitalization project.
The justices were skeptical of how the case was prosecuted, according to a theory approved by the U.S. Court of Appeals for the 2nd Circuit. Its “right to inspect” theory of fraud treats the deprivation of complete and accurate information as a type of property fraud.
Justice Department attorney Eric J. Feigin acknowledged that “it’s an awkward fit with real estate fraud as it’s traditionally been understood.” He tried to convince the judges that it was possible to convict Ciminelli under a new theory based on the facts already presented to a jury. Gorsuch and Jackson in particular seemed doubtful.
Ciminelli’s attorney, Michael R. Dreeben, a former career attorney in the U.S. attorney’s office, said no new theory should be allowed.
“The only real verdict is an acquittal,” Dreeben said, adding that if the theory used by prosecutors fails, “so does this conviction.”
The cases are Percoco v. United States and Ciminelli v. United Statesp.