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Supreme Court Concerned That Bribery Law Might Prevent Their Friends From Taking Bribes

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Andrew Cuomo’s campaign manager took $35,000 from a real estate developer. In the grand scheme of the over $300,000 in bribes he took over his years as a key aide to the New York governor, you’d be forgiven for wondering why this one continues to generate much interest. Even though Joseph Percoco has already been released after serving less than half of his six-year sentence, his case landed before the Supreme Court yesterday as he challenges this one particular payment.

You see, Percoco and his Jones Day (and Mintz Levin and Carlton Fields) lawyers argue, at the time Percoco took THIS payment from a developer seeking to influence the governor’s office, Percoco was merely a humble campaign manager and because he wasn’t a government employee, he was free to take the money. And based on oral argument, the Supreme Court is primed to agree.

All things are possible through God and an org chart.

In the real world, this would present all sorts of problems. Political corruption rarely runs through official channels because criminals aren’t stupid. Dating at least as far back as Andrew Jackson’s “kitchen cabinet,” officials have maintained off the books networks of political advisors holding equivalent if not higher influence than anyone on the government payroll.

In this case, the Supreme Court actually wants you to believe that a politician’s CAMPAIGN MANAGER is just one of those unassuming private citizens who the developer handed $35,000 for funsies.

Justice Kagan, unlike the bulk of her colleagues, seemed to see the problem, noting that Percoco’s interpretation of the law would open the door to a revolving door of officials taking sabbaticals to collect payoffs before waltzing back into office. And there’s certainly a revolving door in politics, but as bad as it may be that an FDA lawyer leaves to join a pharmaceutical company and then goes back to the FDA at least that’s work. The hypothetical Kagan envisions is even more skeevy.

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Alas, Kagan was mostly alone. Not that in the way that more liberal justices are usually isolated — Justice Ketanji Brown Jackson joined conservative justices in expressing concern that the law was too vague. Though the conservatives seemed most active in their disdain that the Department of Justice would dare prosecute someone for bribery merely because he engaged in a wide pattern of taking bribes but took THIS payment while being paid out of campaign coffers instead of the New York State budget.

For example, Justice Alito worried the law might ensnare “a super, super effective lobbyist.” Which it wouldn’t because the law is cabined by a three-part test that (1) everyone recognizes that the defendant is effectively a government official; (2) that the defendant could actually make government officials do something; and (3) other miscellaneous signs of having a government role.

This is the part of the argument where justices play deliberately obtuse. From SCOTUSBlog:

Justice Neil Gorsuch asked Reeves to explain the origin of the government’s three-part test, noting that it is “certainly not in the text” of the federal bribery laws. When Reeves responded that the factors were “inherent in the nature of being a public official,” Gorsuch was unmoved, referring to “the brooding omnipresence of the law.”

There’s a whole lot of ink spilled on subjects like implied agency that seem super relevant here if a justice were inclined to have fits of ecstasy citing medieval English common law. Alas, today that’s not getting Gorsuch as enthused as it usually does.

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Per NBC:

In Percoco’s case, a majority of the nine justices appeared concerned that allowing nongovernment employees to be criminally charged would draw in other influential figures in the halls of power, such as lobbyists. Conservative Justice Neil Gorsuch remarked that Washington is “full of such persons.”

YEAH! Washington is FULL OF SUCH PERSONS!

This is the real concern from our dear politicians in robes. If all their friends in Washington are breaking this law, then this law can’t possibly be right. Defending the status quo in Washington is more than worth giving a green light to anyone looking to game the system for kickbacks in jerkweed provincial towns like Albany. That’s also why Percoco’s dispute over one-tenth of his conviction — which he’s already done serving in prison — is at the Supreme Court with Biglaw backing. He’s just the vehicle to get the Supreme Court to bless the outer limits of shady-but-legal influence peddling that really animates the Washington crowd.

The almost inevitable opinion is going to wring its hands about “vagueness” and say that bribery is still really bad, but THIS statute just isn’t good enough. But it’s all posturing. In reality, the Court aims to gut the government’s last tool to fight political corruption. We’ve already rubberstamped politicians taking money to set up meetings and using their offices to harm citizens for petty revenge, so why not go the extra step and provide a blueprint for officials to make some extra cash through shuffling titles.

If there’s a silver lining to smothering the last vestiges of public integrity laws, at least it should put an end to stupid “Hunter Biden laptop” commentary. That right-wing fever dream also imagines a non-government official taking money to lean on a close relationship with a government actor. It’s the same brand of behavior as the Percoco case without the benefit of the accused Biden being a government official running circles through the revolving door. We should never hear a peep about that matter — whether there’s any basis to the allegations or not — ever again.

No, just kidding, Republicans will still caterwaul about it for the next decade. Nothing matters.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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