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High court primed to temper political bribery convictions in case with ex-Cuomo aide

While embroiled in their own scandal concerning lobbying efforts from conservative interest groups, the justices will examine the bribery conviction of a former right-hand man to the expelled governor of New York. 

WASHINGTON (CN) — Next week the Supreme Court will hear an appeal over the risk of criminalizing political lobbying efforts. 

Joseph Percoco is asking the court to overturn his 2018 conviction for bribery, arguing his work was all above board because it did not coincide with his employment by a state government. Considered an influential figure within New York’s most powerful political dynasties, Percoco served the administrations of father-and-son New York Governors Mario and Andrew Cuomo more than two decades. He had immense power in Empire State politics through his close ties with the Cuomos, and Mario Cuomo even considered him a “third son.”

His career came to an end, however, when it was discovered how lucrative Percoco found government work, raking in over $300,000 from companies that had business with the state. In 2018 Percoco was sentenced to six years in prison for honest services wire fraud and soliciting bribes and gratuities.

Two bribery schemes are at the heart of those convictions. In 2012, when Percoco was serving as Andrew Cuomo’s executive deputy secretary, he got his wife a job with a state lobbyist Todd Howe. Howe headed up an energy company seeking a contract with the state. After hiring Percoco’s wife as an education consultant where she worked a few hours a week for $90,000 a year, Percoco helped Howe’s energy company obtain an energy contract for the state. 

There is no dispute that Percoco was employed by the state in that matter, but his other convictions fall under a much murkier timeline. In 2014, Percoco left Cuomo’s office for about eight months to manage the governor's reelection campaign. During this time, Percoco is alleged to have helped a real estate developer avoid signing a costly labor agreement in exchange for $35,000. 

The eight months where Percoco worked for Cuomo’s reelection campaign are key to the case before the high court. Percoco claims his role in this scheme sets him squarely in lobbyist — not criminal — territory. 

“When a public official accepts money to convince the government to do something, we call him a crook,” Yaakov Roth, an attorney with Jones Day, wrote in a brief for Percoco. “But when a private citizen accepts money to convince the government to do something, we call him a lobbyist.” 

The government contends meanwhile that it doesn’t matter that Percoco wasn’t formally employed in the governor’s office when he still had an immense influence. 

“Someone like petitioner, who is simply on a brief formal hiatus from a government position, but who continues to functionally exercise the relevant authority of that position in the meantime, may be treated as what he plainly is: someone who wields public power,” U.S. Solicitor General Elizabeth Prelogar wrote in a brief to the high court. 

The government’s arguments have a heavy focus on the facts of the case. When Percoco left Cuomo’s office to manage his reelection campaign, no one else was hired to take his place. Percoco also continued to use his government phone and offices. 

Percoco’s role in the bribery scheme occurred after he signed his formal reinstatement and only a week before he formally reclaimed the title. After being pressured by the real estate company over email, Percoco called a government agency for New York, Empire State Development, to complain about the project being held up by a lawyer who insisted that the labor agreement be signed. After his phone call, Percoco assured the real estate company that the agency would change its mind. Sure enough, the company was informed the next day that it could move forward sans agreement. 

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Percoco was paid for his help on the real estate contract through his wife’s work with Howe. The company would wire money to Howe, who would pay out the sums to Percoco’s wife. 

After refusing to dismiss the charges against him, a jury found Percoco guilty of conspiring to commit honest-services wire fraud and soliciting bribes or gratuities. The Second Circuit affirmed, leaving the justices to take up his case in June

Percoco's appeal to the high court claims his conviction violates the First Amendment. He notes that lobbyists are often former officials or employees who have intimate knowledge of their former workplaces. Percoco says his conviction sets a precedent for allowing prosecutors to criminalize “swamp” culture. 

“Criminalizing ‘private persons with a ‘vise-like grip’ on public power’ therefore ‘might simply prohibit being too successful a lobbyist,’” Roth wrote. “But it is hornbook law that ‘the Government may not penalize an individual for ‘robustly exercis[ing]’ his First Amendment rights’ — including his right to petition public officials.” 

The government counters that lobbyists aren’t functional government officials like Percoco so they wouldn’t have to fear about their rights being chilled. 

“Lobbyists and donors are not selected to be public officials,” Prelogar wrote. “And they do not exercise the functions of official government positions. Whatever influence a lobbyist — or a friends, media personality, or family member — might have, such a person cannot reasonably fear that his communications with the government will be treated as official directives, as petitioners were in quite different circumstances here.” 

Citizens United, a conservative nonprofit that won a controversial Supreme Court case allowing corporations and other outside groups to spend unlimited funds on elections, is among a host of groups that have supported Percoco’s appeal in friend-of-the-court briefs. It said the case one about the “continued criminalization of politics.” 

The Chamber of Commerce weighed in on the issue in favor of neither party but warned the justices against an overly broad or vague ruling. 

“Private individuals have engaged in lobbying and policy advocacy to the government since the Founding,” Roman Martinez with Latham & Watkins wrote in a brief for the group. “Such petitioning for redress is a central component of American politics and self-governance. It is also socially useful, constitutionally protected, and highly regulated.” 

The chamber said the justices could take a straightforward approach and create a categorical rule that only actual government officials owe a fiduciary duty to the public. The court could also create a test that recognizes a fiduciary duty for private individuals only in situations where a government employee briefly exists and reenters government service while retaining de facto control over his position. 

A campaign finance ruling in favor of Senator Ted Cruz from last term may signal the justices' receptiveness to Percoco’s arguments. While the government warned the justices that Cruz’s arguments could lead to corruption, the court’s conservatives found politicians’ free speech rights outweighed their concerns. 

As the court takes up Percoco’s case, some of its justices are facing accusations related to a scheme to influence their own rulings through intense lobbying efforts. Over the weekend, a New York Times report detailed a strategy to sway conservative justices to create rulings favoring interest groups. The scheme included donating to organizations that would allow interest groups to attend events with the justices and even purchasing a building across the street from the court to better access court employees. The report also accuses Justice Samuel Alito of leaking a 2014 ruling to an anti-abortion leader before it was publicly announced. 

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