Joseph Percoco leaves the federal courthouse in Mahattan after being sentenced...

Joseph Percoco leaves the federal courthouse in Mahattan after being sentenced on political corrution charges on Sept. 20, 2018. Credit: Jeff Bachner

There’s plenty of finger-pointing in the aftermath of the U.S. Supreme Court reversing two high-profile corruption convictions in New York.

Critics of the court say it has too drastically narrowed federal corruption prosecutions to the point where someone has to be caught red-handed with the money to have a conviction upheld.

“In my view, the Supreme Court has dramatically expanded the legal flow of money into political campaigns while, at the same time, it has dramatically narrowed the grounds on which bribery and corruption charges can be sustained,” said James Sample, a professor of constitutional law at Hofstra University.

But others say the problem is vaguely written laws that fail to spell out what constitutes graft and illegal behavior, combined with zealous prosecutors who try to stretch definitions of “honest services” and mail fraud to fit overambitious cases. They say what’s needed isn’t a better court but better statutes.

WHAT TO KNOW

  • The U.S. Supreme Court's decisions to overturn two high-profile corruption convictions in New York has led to plenty of finger-pointing.
  • Critics of the court say it has drastically narrowed federal corruption prosecutions to the point where someone has to be caught red-handed with the money to have a conviction upheld.
  • Others say the problem is vaguely written laws that fail to spell out what constitutes graft and illegal behavior, combined with zealous prosecutors who try to stretch definitions of “honest services” and mail fraud.

“It’s a basic principle in criminal law: If the government wants to make certain behaviors punishable, then government has to make this clear and it’s not right now,” said Vincent Bonventre, a professor at Albany Law School of Union University.

At issue is Supreme Court decisions to overturn the convictions of Joseph Percoco, the one-time top aide to ex-Gov. Andrew M. Cuomo, and Louis Ciminelli, one of the contractors in the so-called Buffalo Billion economic development initiative launched during the Cuomo administration.

The cases centered on illicit payments and bid-rigging to secure state contracts.

Percoco, Cuomo’s former executive deputy and political enforcer, was convicted on multiple corruption counts in 2018 for receiving $300,000 in payments from developers and an energy company executive in exchange for exercising his clout with the Cuomo administration to garner permits, among other things.

But the conduct occurred at a time when Percoco had left the government payroll to run the governor’s 2014 reelection campaign as a private consultant.

A key legal issue in the case was whether a private citizen with influence over government decisions can be convicted of honest-services wire fraud. The court said yes — if the person enters agreements that make them actual agents of the government. But that wasn’t the situation here.

Further, Justice Neil Gorsuch, in a concurring opinion, said the statute itself is too vague, saying, “To this day, no one knows what ‘honest services fraud’ encompasses.”

Bonventre, hitting on that theme, said: “If there is ambiguity in a statute, the person who authors the statute suffers.”

Meaning: If the government doesn’t clearly define what constitutes “honest fraud services,” the court generally will rule against the government in such prosecutions.

Ciminelli had been convicted of conspiring with a lobbyist and a state university official to tailor a bidding process to ensure his company won lucrative development contracts.

His lawyers argued prosecutors relied on an invalid legal theory of wire fraud that claimed it covered instances in which a victim is deprived of economically valuable information, rather than just property interests.

The Supreme Court agreed.

Bonventre, a self-described liberal, said the issue isn’t, as some critics would have, a Supreme Court dominated by conservative justices because the decisions in Percoco and Ciminelli were unanimous.

“They couldn’t even get one vote. You couldn’t get one to disagree,” Bonventre said. “How many times does the Supreme Court have to hit (prosecutors) over the head and say ‘No, you can’t do this?’”

Neither decision was a surprise, given the court signaled its doubts about the convictions during oral arguments in November. But it’s also the latest in a string of rulings in which the court narrowed the reach of federal public corruption laws.

Most notably, the court in 2010 overturned the conviction of former Enron CEO Jeffrey Skilling, and in 2016 the conviction of ex-Virginia Gov. Bob McDonnell.

In New York, top former legislative leaders Sheldon Silver and Dean Skelos were convicted on corruption charges, had those convictions vacated, then were retried on modified charges and convicted again.

In the broad sense, Sample said the court is delivering outcomes that are “excessively lawyered and not common sensed.”

“Short of having a bag full of cash handed over and caught on a surveillance camera, you’re going to have a hard time prosecuting federal corruption cases,” Sample said. “From the Percoco decision, if you’re a political operative, all you have to do is step away from your job temporarily, do things you couldn’t do in office, then go back into public service.”

Government watchdog groups see it similarly.

The rulings effectively provide a “blueprint for how you avoid the law,” said Blair Horner, executive director of the New York Public Interest Research Group.

But he said the unanimous rulings shows that current laws aren’t working. He said Congress should fix corruption statutes — though it’s shown little interest so far. On the state level, at minimum, lawmakers should approve a bill that bans companies with state contracts from making campaign contributions.

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