Politicians accused of illegal influence peddling, bribe-taking and other crimes have been given fresh hope that a year-old U.S. Supreme Court ruling will get them off the hook.
Ever since the high court reversed a jury verdict against former Virginia Republican Gov. Bob McDonnell, and in doing so tweaked the legal definition of a corrupt act, a growing list of politicians including Illinois Gov. Rod Blagojevich, U.S. Sen. Bob Menendez of New Jersey and others have used the ruling to try to win a new trial or force an end to their prosecutions.
The results so far have been mixed.
In New York, a court last month ordered a new trial for former State Assembly Speaker Sheldon Silver. The Democrat was so emboldened by the decision that he petitioned the Supreme Court to toss his case entirely without a retrial.
In New Jersey, Menendez, also a Democrat, lost a bid Tuesday to get a judge to use the McDonnell ruling as reason to dismiss corruption charges before a trial set to start later this month. U.S. District Judge William H. Walls wrote that he needed to see evidence presented at trial before making a decision.
The Supreme Court in June 2016 tightened rules on what constitutes an “official act” by a public official, saying that merely setting up meetings, calling other public officials or hosting an event do not necessarily qualify as an “official act” taken in return for money or services received.
Some experts say the ruling has already discouraged prosecutors from pressing charges in public corruption cases.
Federal prosecutors in Oregon announced June 16 that they were closing a criminal investigation into allegations that former Oregon Gov. John Kitzhaber and his girlfriend used their positions for their personal benefit. Kitzhaber is a Democrat.
Oregon Secretary of State Dennis Richardson, a Republican, said in a statement that the McDonnell ruling had “set the bar so high that it is now nearly impossible to bring federal charges in political corruption cases.”
Professor Tung Yin of Lewis & Clark Law School said prosecutors would have had a harder time deciding whether to charge Kitzhaber before the McDonnell decision was issued.
“The McDonnell case made it very easy to decide not to pursue charges,” he said.
The full impact of the ruling may become more apparent in the coming months, as more convicted lawmakers chase appeals.
The former leader of New York’s senate, Republican Dean Skelos, who was convicted of corruption around the same time as Silver, is hoping to also get a new trial. A three-judge appeals panel considering his case invited fresh arguments after the Silver decision was released.
In Philadelphia, federal appeals judges are being asked by former U.S. Rep. Chaka Fattah to toss out his federal racketeering conviction and the accompanying 10-year prison sentence because of McDonnell.
In Chicago, lawyers for Blagojevich, a Democrat who began serving a 14-year sentence in March 2012, are planning to appeal his case to the Supreme Court. Blagojevich had been convicted of trying to cash in on his power to appoint a new U.S. senator for Illinois when Barack Obama became president.
“In particular, the court expressed concern about corruption prosecutions involving campaign contributions,” the lawyers noted, saying Blagojevich’s solicitation of campaign contributions was nothing like the “Ferraris, Rolexes, and ball gowns” that McDonnell received from an entrepreneur friend in exchange for setting up meetings where he could promote his business.
Harry Sandick, a former federal prosecutor in New York who now defends white-collar cases, said Congress may eventually rewrite the laws if the public looks at the Silver case and others and wonders why such conduct is legal.
He said the appeals court in the Silver case made it clear “they had no real joy in reversing the conviction. They were troubled too. But the law is the law.”
“It may be naive, but really good government should be a bipartisan issue. Nobody benefits when the public becomes cynical and thinks their government is for sale,” Sandick said.
While the Silver case stands out as an early success for those citing McDonnell, there are limits to its impact.
The Philadelphia federal appeals court on Aug. 4 rejected an effort by Joseph Ferriero, a Democratic fundraiser who was chairman of the Bergen County Democratic Organization in New Jersey from 1998 to 2009, to use it to toss out his racketeering conviction for accepting payments from a vendor in return for recommending that certain officials in towns hire his firm.
“Nothing in McDonnell changes the outcome for Ferriero in this case,” the judges of the 3rd U.S. Circuit Court of Appeals wrote. “New Jersey’s bribery statute is narrower than the broad interpretation of ‘official act’ the McDonnell Court rejected.”