But using political influence as a private citizen is essentially being a lobbyist, Judge Neil M. Gorsuch said, and “this city is full of such people.”
Chief Justice John G. Roberts Jr. told Nicole F. Reaves, a Justice Department lawyer defending Percoco’s conviction, that the government’s case for prosecuting someone who does not hold public office “looks like to…an effort to break down the concept of political power”. .”
Judge Clarence Thomas added that it was “rather strange” that the federal government, rather than New York State, was going after Percoco. “If New York really wanted to continue this activity, it had the power to do so and the legal basis for it,” he said.
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The Supreme Court has grown increasingly suspicious of federal prosecutors prosecuting officials for behavior that some justices have considered the normal business of politics.
In 2016, the court overturned the conviction of former Virginia Governor Robert F. McDonnell (R) and his wife for accepting gifts in exchange for promoting a benefactor’s business, saying McDonnell allegedly had to take specific governmental action on behalf of the benefactor for the behavior is illegal. More recently, he overturned the convictions of two allies of former New Jersey Governor Chris Christie (R) for closing the George Washington Bridge to punish one of the governor’s rivals.
Yaakov M. Roth, Percoco’s attorney, said his client “took no oath of public office” while working on the campaign and “has no legal authority to bind the state or take decisions for him. What he had, Roth said, “was influence, in his case, influence drawn from years of public service, a close relationship with the Cuomo family and his leading role in the campaign. “.
But some judges still expressed concern. Although Percoco resigned as Cuomo’s deputy to lead his re-election campaign, he retained an office in the governor’s suite and attended official meetings. He took payment from the construction company when he was a campaign manager, but called a state official days before returning to state employment to tell him to drop the job. requirement that the company negotiate a labor peace agreement.
Percoco was sentenced to six years in prison after being found guilty of charges including depriving the public of the “intangible right to honest services”.
Judge Elena Kagan told Roth that “the theory of your case is basically, until he was in public office, you couldn’t charge him under this law.” This theory could provide a model for corruption, Kagan said. She speculated about a public official who “resigns from his post every time he wants to accept a bribe, then returns to his post when he is done with 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 bribery. “That must be what the deal envisions, that you sell your official power.” At the time Percoco accepted payment from the company, Roth said, he had no idea it would revert to the state government.
Reaves said Percoco’s arguments were based on a “caricature” of the facts.
“While he was a government official and after deciding 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 “function” as a government official: acquiescence by others to the government to treat the person as an official; an ability to direct government employees to take specific government action; and further indications of a government role. In Percoco’s case, Reaves said, the latter includes keeping its office in a government building and attending government meetings.
Gorsuch and others were unconvinced. “I wonder” where such a test came from, Gorsuch said. “It is certainly not in the text” of the law.
Judge Ketanji Brown Jackson said she was concerned Reaves said it was not an essential part of the test for the person to return to government employment. “If the person is kind of lingering because of their old engagement, why isn’t they 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 judges were skeptical about how the case was prosecuted, according to a theory endorsed by the United States Court of Appeals for the 2nd Circuit. His “right to control” theory of fraud treats the deprivation of complete and accurate information as a kind of property fraud.
Justice Department attorney Eric J. Feigin acknowledged that “it’s an awkward fit with real estate fraud as it has 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 dubious.
Ciminelli’s attorney, Michael R. Dreeben, a former career attorney in the United States Solicitor General’s office, said no new theories should be allowed.
“The only proper judgment is a judgment of 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 Statess.