Legal Docket: Cuomo administration challenges

MARY REICHARD, HOST: It’s Monday morning, December 19th, 2022. Welcome to another week of The World and Everything in It! Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. We have just this week and next for our December Grassroots Giving Drive—we’re closing in on two-thirds of the way there—and if you’re one who’s chipped in to bring us this far, I just want to say thank you for your faithful support.

Now, I’ve read the mail and I know you’re probably grateful that we dialed back some of our nudging, our encouraging, shall I say?

I actually love this time of year—December and June when we do these drives—because I like to talk about mission and vision with you, what we’re doing at WORLD and how you fit into it.

And I don’t mind asking for your support because I think the mission is worthy of your support. 

REICHARD: Exactly! Just think about all the WORLD products we’ve been able to build or rebuild—whether it’s this program or any of our other seasonal podcasts, whether you read the Sift every day or listen on the radio or now the Sift podcast for daily news updated through the day, every day.

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EICHER: It’s extraordinary, that team is just humming. If you haven’t seen WORLD Magazine lately, you really need to.

And look at what we’re doing for students, a breathtaking refresh of the God’s World News magazines that are rolling out in just a few weeks. I got to see the finished product just last week—Rebecca Cochrane and Rob Patete—so proud of them and their team and their work serving young people and families.

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I’ve said before, it’s as good as anything you’ll see on network television, but it doesn’t insult your intelligence.

REICHARD: Or leave you in despair.

EICHER: Point is, none of that, none of it, could have happened without you.

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EICHER: There’s so much more we could say, but let’s just say: if you haven’t given yet to the December Grassroots Giving Drive, I hope you’ll do it today, at WNG.org/donate.

REICHARD: Yes, WNG.org/donate.

EICHER: Shall we dive into Legal Docket? 

REICHARD: Yes, let’s. 

EICHER: Today, we cover two oral arguments heard on the same day at the U.S. Supreme Court. Each case involves a man challenging his fraud convictions that arose out of his work with the man who was then governor of New York, Andrew Cuomo.

Here are the facts in the first one. In 2018, a jury convicted Joseph Percoco of conspiracy to commit fraud. He had been an aide to and close associate of Governor Cuomo.

For a short period, Percoco stepped out of government. It was then that he accepted money from companies that sought to influence the Cuomo administration for construction contracts around Syracuse, New York.

REICHARD: Prosecutors went after him under a federal law meant to fight corruption. This kind of fraud is defined in law as “a scheme to deprive another of the intangible right of honest services.” In other words, someone pays a bribe, and an innocent someone else is harmed. In this case, the harm is to the citizens to whom public servants owe a fiduciary duty.

But watch that term “public servants.” Percoco’s legal team makes the argument that the definition applies only to officials actually working for the government. Percoco was a private citizen when he took the money.

Here’s what his legal brief says: “When a public official accepts money to convince the government to do something, we call him a crook. But when a private citizen accepts money to convince the government to do something, we call him a lobbyist.”

EICHER: Clever, but lawyer Nicole Reaves for the federal government argued Percoco was a de facto government employee. Reaves will refer to that de facto government employee as “petitioner.” She’ll be talking about Percoco.

REAVES: Petitioner was able to attend internal government meetings that no one else from outside the government was able to attend. He was able to -- he continued to have key card access. He continued to order his secretary -- his former secretary around. He continued to use government phones and offices. And, because of this, because of these three things on the facts of this case, Petitioner was operating essentially in the exact same role that he had previously, formally held.

The record shows that Percoco told people he’d get his old job back as soon as Cuomo won re-election.

But Justice Ketanji Brown Jackson seemed skeptical of the government’s argument. She questions Reaves:

JACKSON: How much does it matter that he is going to return to office? Because your three-part test seems to me to sweep in people who, as you've suggested, just overstay their welcome. They're -- they're out of office, but they keep the same key card and they're in the same office and they have the same secretary. So does it matter that the person is planning to return?

REICHARD: Reaves answered that functionally, that’s enough to convict. That he did return to office is yet another proof of his de facto influence.

But Jackson pressed further:

JACKSON: But how do you distinguish that person from a lobbyist? Lots of people leave their former employment, maybe their key card hasn’t been turned off yet, they continue to engage in relations with people that they formerly worked with.

Percoco’s lawyer Yaakov Roth rattled off several factors to try to demonstrate how his client truly was a lobbyist:

ROTH: At all relevant times, Petitioner here was a private citizen. He took no oath of public office. He received no salary from the public fisc. He possessed no legal authority to bind the state or make decisions for it. What he did have, like many lobbyists and donors and interest groups and others, was influence. In his case, influence drawn from years of public service, from a close relationship to the Cuomo family, and from his senior campaign role. But none of that creates a fiduciary duty to the public.

Justice Clarence Thomas imagined the “ick” factor in this hypothetical addressed to Roth, Percoco’s lawyer:

THOMAS: Counsel, let's assume that Petitioner did not resign much more than, say, one afternoon and then engaged in this conduct. Do you think you would still be able to make the exact same argument?

ROTH: I don't think it would be the exact same argument, Your Honor, because I think, if it were that short a period of time, it's very likely that the government would be able to show that the agreement contemplated the use of official power upon his return to office…

Roth conceding that Percoco had influence drawn from years in public service. But that by itself doesn’t create a fiduciary duty to the public while Percoco was a private citizen. He argues, the prosecution went too far.

ROTH: And by pressing this influence theory in particular, the government strolls recklessly into a constitutional mind field. Judge Winter was right to call the government’s theory a catch-all political crime which has no use but misuse.

Percoco’s argument seemed to persuade the justices.

Listen to Justice Elena Kagan take on the government argument. Here, addressing Reaves:

KAGAN: It strikes me that the strongest part of your case is the fact that this is a guy who was a former government official and who will be a former government official, and this is just this little hiatus that he's taken and not even to go into private service but to go into sort of the governor's private service, right? So that – I mean, that's the strongest part of your case. But you're proposing a test which, doesn't need to have any of that. You don't have to be a former official. You don't need to be a future official.  Can you give me a hypothetical of a person who is not a former official and who is not a future official, so doesn't have those periods of real status-based control, who is going to meet your test? I don't think you can give me that test without making it look like the guy is just a really, really good lobbyist.

Overly zealous prosecutions often arise from ambiguous laws. And the justices have frowned on those.

For example, four years ago, the court threw out the convictions of former Virginia Governor Bob McDonnell. He’d accepted money and extravagant gifts while in office.

Here’s Chief Justice John Roberts announcing that opinion in part:

ROBERTS: There is no doubt that this case is distasteful. It may be worse than that, but our concern is not with tales of Ferraris, Rolexes, and designer clothing. It is instead with the broader legal implications of the government's boundless interpretation of the federal bribery statute.

Different situation, but the vagueness problem and boundless interpretation got McDonnell’s convictions thrown out.

Which brings us to the second argument: another Cuomo administration-related case. This second one involves a real estate developer in New York convicted for his role in a bid rigging scheme, also during Cuomo’s administration.

Prosecutors went after developer Louis Ciminelli on a legal theory that says you’re guilty of fraud if you withhold important financial information from the government in business dealings.

But Ciminelli argues that theory doesn’t apply to him.

His lawyer, Michael Dreeben:

DREEBEN: It would radically expand federal law, violate federalism principles, and end-run limits on honest services fraud. And the theory's breadth requires ad hoc patches that contradict black letter law and that even the government does not fully endorse.

Not only did the government not endorse that legal theory at the Supreme Court: It abandoned the theory altogether. So the government focused instead on how much the contract in question was worth. Eric Feigin made that tricky argument and Justice Neil Gorsuch expressed appreciation:

GORSUCH: I do admire the government’s concession of error here, and I appreciate the candor with which you’ve made it.

Still, a law that ensnares people not intended to be ensnared tends to rub justices the wrong way. Broadly, they tend to think: People need to know what’s legal; we don’t need the government having lots of wiggle room to lock us up.
One last comment from the oral argument. I think this one gives us a clue as to how this is likely to go for the government and the beleaguered lawyer Eric Feigin.
Justice Brett Kavanaugh:

KAVANAUGH: The government has been pushing this theory for several decades, and lots of people have been convicted under it. And I think the reason is, you just said, it's easier to convict people under this incorrect articulation of the theory than under the correct articulation of the law. And then to, you know, come here in the bright light of this Court, for the government to then say, actually, you know, that theory doesn't hold up, it's—again, appreciate the candor, but looking back on the government pushing this theory all those years is not—not an ideal scenario.

“Incorrect articulation of the theory” versus “correct articulation of the law.” As Justice Kavanaugh says, counsel, your argument, it’s not an ideal scenario.

Oh, boy. Justices both liberal and conservative came down hard on the government here. It looks like these cases will be decided not on whether the government wins or loses, but I think the only issue here is more a matter of just how badly the government will lose.

I’m not sure I’ve been quite so confident how a case will turn out. I am on this one.

And that’s this week’s Legal Docket.

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