The Skelos Reversal: How Do You Tell The Corrupt Politician From The Non-Corrupt?

I first dabbled in commenting on the Dean Skelos prosecution within days after the first criminal complaint was issued against him back in May 2015.  In that first post on the subject, I characterized the charges against Skelos as "remarkably thin."  However, a jury convicted him.  Three days ago the Second Circuit Court of Appeals vacated the conviction.  (That link is to a news article from New York Magazine. The opinion itself is available on the court's PACER system, to which you probably do not have access.)  The vacatur of the conviction does not preclude re-trial.  

For non-New Yorkers who don't recognize the name, Skelos was -- up until he was charged with corruption -- the (Republican) Majority Leader of the New York State Senate.  If it somehow surprises you that the State Senate in this bluest of blue states is (and long has been) controlled by the Republicans, you will start to get an idea of why it might have been a priority for the Democrats to get rid of Skelos.  Skelos's prosecutor was Preet Bharara, whose job, prior to being named by Barack Obama to be U.S. Attorney for the SDNY, was counsel to Chuck Schumer.  

Was the Skelos prosecution just nothing more than the most naked of naked politics?  You can be the judge.  In that May 2015 post I compared the allegations in the criminal complaint against Skelos to some of the well-known facts as to Hillary Clinton -- facts in which Bharara could not have been less interested.  For example:

Seems that Skelos managed to get his son a consulting gig that paid about $200K over four years, $50K or so a year.  Chelsea Clinton somehow got a $600K per year job at NBC News -- a job that even loyal Clinton supporter New York Magazine called "fake."  Of course, nobody took the trouble to tape every phone conversation that Bill or Hillary may have had with NBC or affiliates over the last several years to see if there was any "pressure."     

The important question is, by what criteria can you tell which of these and other actions by politicians is corrupt and which is not?  In the May 2015 post (and elsewhere) I have expressed the view that politics is inherently corrupt; but our legislators and prosecutors and judges seem to be of the view that they have some system or criteria to tell the difference between the corrupt and honest pols.  Today, let's look at the background and the result of the Skelos case, and see what guidance we can get.

My conclusion is, the federal law of political corruption provides no meaningful basis for making a useful distinction between what conduct of politicians is corrupt and what is not.  This hands completely unacceptable discretion to prosecutors to use the laws to get rid of whichever politician they don't like.

As readers of my previous posts know, the current state of the law in this area derives from prior efforts of the U.S. Supreme Court to put some boundaries on the ridiculously vague anti-corruption statutes enacted by Congress.  The most ridiculously vague of the statutes is the so-called "honest services fraud" provision, 18 U.S.C. Section 1346, which makes it a criminal fraud to "deprive another of the intangible right of honest services."   Kindly advise what you think that might mean.  Needless to say, Skelos was prosecuted under that statute (among others).  I would say that that statute should have been declared void for vagueness by the Supreme Court when it got a chance, but in the 2010 Skilling case, instead of doing that, the Supremes saved the statute by saying that it survived as long as the allegations amounted to "bribery" or a "kickback."  And thus there was imported into the "honest services fraud" statute the requirements of the federal bribery statute, including that the quo granted by the politician for the quid from the briber be some "official act."

Is it getting any clearer?  Next, in the 2014 prosecution of Governor Bob McDonnell of Virginia, the alleged "official acts" proved by the prosecutors consisted of the setting up of a series of meetings with state bureaucrats.  (And after the meetings, the bureaucrats never did what McDonnell's benefactor wanted them to do!)  Good enough?  McDonnell was convicted, and his conviction affirmed by the Fourth Circuit, but the Supremes reversed unanimously.  The opinion by Chief Justice Roberts was definitive that merely setting up meetings was not enough to be an "official act" and thus to prove a bribe.  That opinion came down in April 2016 -- after Skelos had been convicted, and while his case was on appeal.

Back to the Skelos case.  Although McDonnell had reached the Supremes, and was in the process of briefing, when the Skelos trial took place, the prosecutors in their usual hubris assumed that affirmance was a sure thing, and thus many of the supposed "official acts" that they proved as to Skelos consisted of setting up meetings.  The prosecutors asked for and got a jury instruction that defined "official act" as "any act taken under color of official authority," without an exclusion for setting up meetings -- basically an almost identical instruction to the one found erroneous in McDonnell.  And the Skelos prosecutor proceeded to argue to the jury specifically that setting up meetings did constitute "official acts."  ("So the defense wants you to think that things like setting up meetings or making calls about a few thousand dollars don’t really count as official actions. It’s just wrong. Flat wrong.”)  Oops!  And thus was the conviction doomed.

But, after vacating the conviction, the Skelos court then takes up the question of whether he can be re-tried.  That issue turns on whether there is sufficient evidence to prove a bribe even after exclusion of the setting up of meetings as being the "official acts."  The court finds that there is sufficient evidence to justify re-trial.  The remaining alleged "official acts" are in two categories:

  1. Voting on a statute, allegedly in a way favorable to the interest of the briber.  The court quotes from its own prior decision in a case called Rosen for the proposition that legislative votes, even routine ones, can be sufficient to constitute the quid pro quo for a bribery case.  ("Payments to State legislators may constitute bribes even if the legislator’s resulting actions are otherwise ‘routine’—such as voting in a certain manner or supporting grants to certain businesses. . . . ")  It appears that the particular vote in question in this case was Skelos's vote on the periodic renewal of New York City's rent regulation regime.  
  2. "Using influence" to obtain approval of a measure by another legislature of which Skelos was not a member.  The particular issue here is that Skelos was trying to get his son a job with an environmental consulting firm, and that firm wanted a contract with the government of Nassau County, which contract required (and got) approval from the Nassau County legislature.  Skelos was not a member of the Nassau County legislature, and did not vote on the matter.  The Second Circuit states:  "Using one’s influence as a high ranking state official to push through county legislation and to bestow a county-issued contract are indisputably formal exercises of governmental power constituting official acts under McDonnell." 

Well, start with number one.  Every single state legislator raises campaign contributions from dozens or hundreds of contributors, and every single state legislator casts dozens or hundreds of votes in the legislature, large numbers of which votes are favorable in some way to some campaign contributor.  The same of course also applies to members of the federal Congress.  If that's all it takes to make a bribe, then definitely every state legislator and every Congressperson is guilty.

And that's a huge problem.  It's a huge problem because if the statutes and case law make no practically useful distinction between corrupt pols and all the other pols, then it inevitably falls to the prosecutors to pick on whatever politician they don't like or want to get rid of, with the assurance that the evidence to prove the "crime" can always be found.  Will prosecutors then abuse this power to get rid of the particularly annoying leading politicians of the opposing political party?  Of course they will.

And as to number two:  It's "indisputably" an "official act" to "push through" (what does that mean?) legislation in a legislature of which you are not a member and in which you have no vote?  Really, Second Circuit?

The current (interim) U.S. Attorney for the SDNY has made a perfunctory statement that he intends to re-try the case.  I tend not to believe the office will carry through on that, particularly if President Trump ever makes an appointment to the office.

Meanwhile, the important lesson here is that the federal law of political corruption absolutely makes no useful distinction that enables you to tell which are the corrupt and which are the non-corrupt politicians.  Or that enables politicians to figure out how to conduct themselves in a way that will not get themselves prosecuted.  Maybe there is no way to draft statutes to make those distinctions in a useful way.  The fact is that politics is inherently corrupt.  The only meaningful way to address the problem is smaller government.