Making America Safe for Corruption
Updated 16 May, 2023
Did you hear about the Supreme Court decision? I’m not talking about Dobbs, or last month’s emergency stay allowing the abortion and miscarriage medication Mifepristone to remain on the market while a case against the FDA is heard on appeal. I’m talking about Percoco v. U.S.
You didn’t hear about it?
I’m not surprised. In fact, I feel like a broken record. This is just how I opened my book On Corruption in America. There, the contrast was between the Court’s avidly awaited decision striking down a Texas abortion law, and the unanimous one handed down the same day that reversed the conviction of a former Virginia governor for corruption.
This latest blow to hopes of combatting corruption in this country was also unanimous; these decisions almost always are. A top aide to Andrew Cuomo, the disgraced former governor of New York, took an 8-month leave to run Cuomo’s re-election campaign. During that time, he accepted a bribe to help facilitate a real estate development project.
There was no question that the money Joseph Percoco pocketed was a bribe. Nor that a private citizen can act in ways that violate the federal bribery statute. So what was the problem with his conviction?
When the judge sent the jury off to deliberate, he explained that the crime of bribery could only be constituted if this ostensibly private citizen “dominated and controlled” some government business, and “people in the government relied on him because of a special relationship.” But those instructions, according to all nine Supreme Court justices, were not precise enough for ordinary citizens to understand.
Ordinary citizens? I wonder how many ordinary New York citizens were confused about the tenor of dealings in the vicinity of Gov. Cuomo. I wonder how many citizens did not understand that one of his most trusted henchmen could still get things done in Albany while running the governor’s political campaign.
Ordinary citizens are pretty clear about corruption. The only people who aren’t — who can’t seem to figure out what counts as a bribe in this country — are the nine who occupy the highest bench. I’ve looked at a half-dozen Supreme Court cases on the topic, argued over a period of thirty-five years. All were decided in favor of corruption. All but one unanimously.
This latest ruling came down, needless to say, as scandal was engulfing the court itself, over lavish gifts and business transactions afforded several justices, notably Clarence Thomas. No example involved a direct quid pro quo — and that’s exactly why U.S. anti-corruption laws need to be broader, not narrower.
But maybe the learned gentlemen and -women aren’t so befuddled as they may seem. According to Amy Howe, writing in SCOTUS Blog, they were all concerned that even the current rule, as applied to Percoco, “would be overinclusive, turning the proverbial revolving door between government service and the private sector into a pathway to prison.”
Thomas, incidentally, together with Neil Gorsuch, signed a separate opinion. In their view, the whole idea that American citizens have a right to the “honest services” of their government officials should be scrapped.
I had better stop right here, before I let loose with any more sarcasm. This is not the blog I intended to write. Because, at the moment, I really don’t see how we restore elementary notions of integrity to the calling of public service. And empty indignation gets old.
So expect another blog soon. That one will also feature indignation, but a couple other items too.
Horrors: a friend pointed out that the picture I had initially posted with this blog was taken before the accession of the latest Supreme Court Justice, Ketanji Brown Jackson. An embarrassing error. Groundbreaking though her appointment may be, however, she too joined the unanimous decision.
Another member of our little tribe was trying to recall a Supreme Court decision about lying. "When you think about it," he wrote me, "lying is not only an enabler of corruption, but a requirement for it." That is an excellent point. Criminal lying is called fraud. And that's why fraud is such a crucially important crime. Honest services crimes — that is, corruption — are technically defined as schemes to "defraud" citizens of their right to the honest services of their government officials. That definition has been repeatedly narrowed, to mean now only bribery and kickback schemes, not the broader, more intangible right to basic integrity that the statutes first intended. And even those two crimes have been chiseled down to the point that you'd almost have to be worthy of punishment for stupidity to actually commit one.
More generally, fraud seems so humdrum, compared to battery or murder, for example. And yet, it causes far more harm to far more citizens every day. So, one small thing to do is to prick up your ears when you hear the word. Don't let it slide by. Start asking questions. Maybe, as one of you suggested below, indignation has some value after all.
Another reader accused me of "misplaced animus" — that is, gunning for the wrong target. "If the rulings were all (almost) unanimous, it's not the court that's to blame for interpreting the law as the law stands," Well first of all, even a unanimous court can be wrong. Each of the initial convictions, secondly, was handed down by a unanimous jury; then an appeals court upheld, also usually unanimously. So if you count the votes, SCOTUS is outnumbered.
On the other hand, I agree with the writer that plenty of fault lies with Congress. The most recent examples are the vision-blurring zip with which all the ethics provisions were stripped out of H.R. 1, the so-called For the People Act, or the way the STOCK Act, limiting members' opportunities for insider trading, was watered down.
My thanks to you all, as always, for your kind and pertinent attention.