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Justices protective of lobbying in appeal of ex-Cuomo aide convicted on bribes

The Supreme Court examined how political lobbying could be stifled if it upholds the bribery conviction of a former gubernatorial aide.

WASHINGTON (CN) — Stemming from the bribery conviction of the former right-hand man of an ousted New York governor, the justices searched Monday for a way to condemn bribery without criminalizing political lobbying. 

The justices appeared hesitant to fully embrace the arguments of Joseph Percoco, 53, who claims a temporary leave from the office of the former governor, Andrew Cuomo, gave him the green light to conduct a $35,000 bribery scheme. 

“You can spin lots of different versions on it up to the point where a public official just resigns his office every time he wants to take a bribe and then picks up his office again when he’s completed the bribe,” Justice Elena Kagan said. “There has to be something wrong with that.”

Instead, the high court searched for a test to define political corruption. 

“How do you distinguish that person from a lobbyist,” Justice Ketanji Brown Jackson asked. “Lots of people leave their former employment … and continue to engage in relations with people they formally worked with.” 

The justices worried that adopting a broad definition for political-influence campaigns could upend lobbying. Justice Samuel Alito noted that some lobbyists have deep-seated connections that make them very good at their jobs. He asked if a ruling in the case could criminalize “super-super effective lobbyists.” 

“There’s a concern about interpreting this statute to sweep in lobbying,” the Bush appointee said. 

Kagan noted that the government’s arguments would lead to outsiders being liable for things they couldn’t possibly know. 

“It strikes me that those are the things that insiders might know very well,” the Obama appointee said. “The problem is that outsiders don’t really have any reason to know those things, and an outsider can also be on the hook under the statute for doing the paying.” 

Chief Justice John Roberts said the government’s description of who should be liable under the statute included all those with political power.

“So it sounds like that’s an attempt to break down the concept of political power,” the Bush appointee said. 

Percoco gained political power during his more than two decades of service during the administrations of father-and-son New York Governors Mario and Andrew Cuomo. Not content, however, with merely considerable influence in New York’s most powerful political dynasties, Percoco found a way to profit from his clout. Companies that worked for the state paid Percoco at least $300,000, earnings that ultimately brought Percoco a six-year prison sentence for honest services wire fraud and soliciting bribes and gratuities. 

Prosecutors noted how Percoco, while serving as Andrew Cuomo’s executive deputy secretary in 2012, got his wife a high0-paying low-show job with a state lobbyist Todd Howe. In exchange for the part-time gig that brought his wife $90,000 per year, Percoco helped Howe get an energy contract with the state. 

Percoco wielded his influence within the governor’s office two years later to help a real estate developer avoid a costly labor agreement. Unlike Howe’s energy contract, however, Percoco claims his influence within the government was less than official during this period because he had left his government job in 2014 to run Cuomo’s reelection campaign. This eight-month gap creates a murky timeline for when Percoco’s influence efforts were done under his official title or as a private individual. 

The government says Percoco maintained his position on government in all but his title. They cite his continued use of his office and official phone as evidence to support these claims. The government also noted an instance where Percoco attended a government meeting during the time he was managing Cuomo’s campaign. 

“Petitioner’s approach … would permit individuals who function as government officials to accept bribes and kickbacks,” said Nicole Reaves, assistant to the U.S. solicitor general at the Department of Justice.  

Reaves argued that Congress intended the government to have the power to prosecute these types of offenses and their official title should not interfere with that authority. 

“Someone can be effective … without actually being the final say on something and being able to actually command government employees to take government acts,” Reaves said. 

Percoco argues that the government’s theory would criminalize political lobbying. His attorney, Jacob Roth at Jones Day, told the justices that bribery laws are violated when someone with authority sells his influence. That can’t be the case for someone who isn’t a public official. 

“[Percoco] possessed no legal authority to bind the state or make decisions for it,” Roth said. “What he did have — like many lobbyists, donors, interest groups, and others — was influence.” 

A jury found Percoco guilty of conspiring to commit honest-services wire fraud and soliciting bribes or gratuities. The Second Circuit affirmed. The justices took up the case in June along with an appeal from a tangentially related New York developer, Louis Ciminelli, who was convicted of fraud related to Cuomo's Buffalo Billion initiative.

Arguments in Ciminelli's case on Monday also appeared to favor the defendant.

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