By Adam Liptak
The Supreme Court, which has become increasingly skeptical of federal prosecutions of public corruption in state government, seemed poised earlier this week to hand prosecutors two more defeats.
The justices heard arguments in two cases involving defendants convicted of fraud during former Gov. Andrew Cuomo’s administration in New York. One concerned Joseph Percoco, a former aide to Cuomo convicted of taking illicit payments to benefit a Syracuse-area developer.
The other involved Louis Ciminelli, the owner of a Buffalo construction firm convicted of fraud in a bid-rigging scandal in connection with Buffalo Billion, a development project championed by Cuomo.
The question in the first case, Percoco v. United States, No. 21-1158, was whether Percoco could be prosecuted under a federal law that makes it a crime to deprive the government of “honest services” for conduct that took place after he resigned his government position to run the governor’s 2014 reelection campaign.
Yaakov M. Roth, a lawyer for Percoco, said the law applies only to people who exercise the authority of the government, a power he said his client had lacked when he received the payments.
“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,” Roth said. “But none of that creates a fiduciary duty to the public.”
Percoco returned to the government about eight months after he left it, following Cuomo’s reelection.
Justice Clarence Thomas asked whether an official could resign for an afternoon, just long enough to take a bribe. Roth responded that such a bribe would very likely be in exchange for government action after the official’s return, which he said would be covered by the law.
Nicole F. Reaves, a lawyer for the federal government, said Percoco had remained a government official throughout the relevant period as a functional if not a formal matter.
Percoco “was able to attend internal government meetings that no one else from outside the government was able to attend,” Reaves said. “He continued to have key card access. He continued to order his former secretary around. He continued to use government phones and offices.”
Justice Elena Kagan said Reaves’ argument went too far. It is one thing to prosecute officials who take a “little hiatus” and engage in graft, knowing they will return to the government. But Reaves, in focusing on whether someone was a functional government official, would sweep in many other kinds of people seeking to influence official actions, Kagan said.
“You don’t have to be a former official,” Kagan said of the lawyer’s theory. “You don’t need to be a future official.” It should not be enough, she said, to be “just a really, really good lobbyist.”
Thomas seemed wary of federal prosecutions of state officials, suggesting that local authorities should police state politics.
“The state of New York doesn’t seem to be upset about this arrangement,” he said of the payments to Percoco, adding, “It seems as though we are using a federal law to impose ethical standards on state activity.”
The justices do not always divide along the usual lines in public corruption cases. In 2020, the court unanimously overturned the convictions of two defendants in the so-called Bridgegate scandal, in which associates of Chris Christie, New Jersey’s governor, closed access lanes to the George Washington Bridge in 2013 to punish one of the governor’s political opponents. That was an abuse of power, the court ruled, but not a federal crime.
Similarly, the court in 2016 unanimously overturned the conviction of Bob McDonnell, a former governor of Virginia who had accepted luxury products, loans and vacations from a business executive. Chief Justice John Roberts, writing for the court, narrowed the definition of what sort of conduct can serve as the basis of a corruption prosecution.
He said that only formal and concrete government actions counted. What McDonnell had done, by contrast, the chief justice wrote, was arrange meetings for and attend events with his benefactor.
The second case Monday, Ciminelli v. United States, No. 21-1170, concerned what prosecutors said was a conspiracy to commit wire fraud by tailoring requests for proposals for work on the Buffalo development to include qualifications that would ensure the contracts would go to Ciminelli’s firm.
The prosecutors’ legal theory was that the defendants had committed fraud by depriving the government of its “right to control” the use of its assets by failing to disclose potentially valuable information.
By the time the case reached the Supreme Court, though, the government had disavowed the theory. That made for an awkward argument, one focused on how and how badly the government was going to lose.
Michael R. Dreeben, a lawyer for Ciminelli, said the government’s change in position meant that his client should be acquitted.
Eric J. Feigin, a lawyer for the federal government, sought to preserve the conviction under a new theory — which focused on the value of the contract — but he faced serious headwinds.
Justice Neil Gorsuch said, “I do admire the government’s concession of error here, and I appreciate the candor with which you’ve made it.”
But the justices seemed to have little appetite for considering the government’s new theory.
“Mr. Feigin, that’s not how it works,” Justice Ketanji Brown Jackson said. “I mean, the fact that it might map on to another theory of fraud isn’t sufficient in a criminal case.”