Supreme Court Complicates Corruption Cases

From New York to Illinois - 

By ERIC LIPTON and BENJAMIN WEISER - JUNE 27, 2016
www.nytimes.com

WASHINGTON — After Dean G. Skelos, the once-powerful New York state senator, was sentenced last month on federal corruption charges, one of his lawyers asked the judge to allow Mr. Skelos to remain free on bail while he appealed his conviction.

Her argument: A case pending in the United States Supreme Court, challenging the conviction of former Gov. Bob McDonnell of Virginia, could help undermine the criminal charges against Mr. Skelos.

“It is extremely likely that the court will reverse the conviction in Governor McDonnell’s case,” Alexandra A. E. Shapiro, the lawyer, told the judge.

Her prediction proved accurate. And within moments after the Supreme Court reversed Mr. McDonnell’s conviction on Monday, defense lawyers from Illinois to New York were citing the unanimous ruling as grounds to challenge past and pending criminal corruption cases brought by the Justice Department.

“This is a sign of the court saying to prosecutors, ‘You are overreaching,’” said Leonard Goodman, a lawyer for former Gov. Rod R. Blagojevich of Illinois, who was convicted on corruption charges in 2011 and is scheduled to be resentenced in August. “They think they have unfettered discretion to take down any elected officials.”

Current and former prosecutors strongly disagreed.

In Manhattan, a spokesman for Preet Bharara, the United States attorney there, said in a statement on Monday, “While we are reviewing the McDonnell decision, the official actions that led to the convictions of Sheldon Silver and Dean Skelos fall squarely within the definition set forth by the Supreme Court today.”

Mr. Bharara has repeatedly said he remains committed to ending a pattern of corrupt acts by elected officials, and most recently, his office won the convictions of Mr. Skelos and Mr. Silver, a former State Assembly leader.

Still, there was agreement among legal experts on Monday that the ruling would make it harder for the government to win corruption convictions. For the second time since 2010, the court narrowed the avenues that prosecutors have to file such charges. The decision could even discourage some cases from being brought in the first place.

“The bar is now higher in terms of what you have to prove,” said Randall D. Eliason, a former chief of the public corruption section at the United States attorney’s office in Washington. “This will leave a lot of unsavory conduct unpunished.”

Mr. McDonnell was accused of accepting gifts, loans and vacations from an affluent Virginia businessman who wanted the governor’s help dealing with state officials.

“Our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns,” Chief Justice John G. Roberts Jr. wrote for the court, adding that “setting up a meeting, talking to another official or organizing an event (or agreeing to do so) — without more” — does not fit the definition of an “official act.”

In 2010, in a decision also involving so-called honest services fraud, the Supreme Court set aside the conviction of Jeffrey K. Skilling — the former chief executive of Enron, the bankrupt energy company — ruling that the law could be used to prosecute only bribery or kickbacks, not more limited actions like “self dealing,” in which an official secretly takes an action for personal gain.

Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, a liberal nonprofit group, said the combination of rulings was likely to have a major impact because elected officials involved in wrongdoing often did not have the power to personally deliver the favor that had been requested.

Mr. Bookbinder said examples of cases that might now be harder to prosecute included those of Representative Randy Cunningham, Republican of California, who pushed the Defense Department to select a particular contractor after receiving gifts and pleaded guilty in 2005, and Representative William J. Jefferson, Democrat of Louisiana, who was convicted in 2009 of taking bribes from a company that asked him to press executive branch officials to buy its products.

“The Supreme Court seems to be giving people a way to go ahead with corrupt conduct, with kind of a wink and a nod,” Mr. Bookbinder said.

Joel Bertocchi, a former federal prosecutor in Chicago, cautioned against overstating the impact of Monday’s ruling. “Having the same set of facts, they may be able to file different charges,” he said.

But defense lawyers and some conservative legal groups that have been critical of the Justice Department said they hoped the ruling would bring real change. They argued that the government had, in its zeal to win headlines, filed charges in recent years for activities that did not meet the standard for federal corruption.

“Once again, it has taken the U.S. Supreme Court to remind prosecutors that they do not have a blank check to read all kinds of unintended and overly broad criminality into vaguely worded statutes passed by Congress,” said E. G. Morris, a lawyer in Austin, Tex., and the president of the National Association of Criminal Defense Lawyers.

The precise impact of the McDonnell ruling on the Skelos and Silver cases was not immediately clear. Lawyers for Mr. Skelos, the former State Senate majority leader and a Republican, had no comment on the decision.

But at Mr. Skelos’s sentencing last month, Rahul Mukhi, a prosecutor in Mr. Bharara’s office, argued that Mr. Skelos’s corrupt acts had gone far beyond those taken by Mr. McDonnell, and that the cases were not “factually analogous.”

“McDonnell involved only meetings,” Mr. Mukhi said. “This case involved, overwhelmingly, legislation.”

Mr. Bharara’s office had said, for example, that Mr. Skelos supported legislation in Albany to benefit companies that arranged payments to his son, Adam B. Skelos, who was convicted along with his father. The elder Mr. Skelos received a five-year prison term; his son was sentenced to six and a half years.

Lawyers for Mr. Silver, a Democrat who received a 12-year sentence, said Monday that the McDonnell decision “will be central” to their client’s appeal.

The lawyers, Steven F. Molo and Joel Cohen, said the decision “makes clear that the federal government has gone too far in prosecuting state officials for conduct that is part of the everyday functioning of those in elected office.”

Noel J. Francisco, who argued Mr. McDonnell’s case before the Supreme Court, said that he hoped the ruling would be the end of his client’s prosecution and that the charges would be dropped entirely.

“They brought the case they brought,” he said, “because that was the most they could get a conviction on. That theory has been squarely rejected.”