by Stephen L. Carter
The U.S. Supreme Court heard oral argument Monday in the most important case you’ve never heard of. Although Percoco v. United States has generated few headlines, its reach could alter the way businesses deal with regulators and legislators.
The case arises from the 2018 conviction of one Joseph Percoco, who took a break from his job in Governor Andrew Cuomo’s office to run Cuomo’s reelection campaign. During his time away, a company having trouble with state labor regulators offered him $35,000 if he could, let us say, make the problems disappear. Percoco placed a few calls to key officials, the regulators backed off, and the company was happy. And Percoco then returned to his senior role in state government after Cuomo won his new term.
Sure, sounds a wee bit grafty. But the question the justices agreed to consider isn’t whether Percoco is a shining example of ethical probity. The question is whether he violated a federal statute aimed at punishing public officials who take bribes. The jury found he did, and the U.S. Court of Appeals for the Second Circuit rejected his defense that the law didn’t apply to him because when he took the money and placed the calls he was, technically, a private citizen.
The Second Circuit’s opinion makes fun reading. The text abounds with references to “The Sopranos” and schemes to “keep the ziti flowing.” But the relevant issue isn’t whether Percoco was a sleazy character who hatched sleazy plans. The relevant issue is whether those sleazy plans violated a murky 1988 congressional amendment that prohibits participation in “a scheme or artifice to deprive another of the intangible right of honest services” — what’s become known as “honest services fraud.”
This vague and obscure amendment has long been a boon to prosecutors precisely because of its vagueness and obscurity. As the legal scholar Albert W. Altschuler points out, the 1988 law “enabled lower federal court judges, like the priests of ancient Delphi, to explicate language ordinary mortals could not understand.” But writing language ordinary mortals can’t understand and adding it to the criminal code isn’t good for democracy or for the law.
For example, prosecutors argue that the prohibition should cover all those who “function” as employees, even when they hold no official position. The Second Circuit agreed. In its opinion affirming Percoco’s conviction, the court concluded that the law provides no basis to distinguish a “formal” from a “functional” government employee. The judges wrote that the law is broad enough to cover all those individuals “who are relied on by the government and who in fact control some aspect of government business.”
Percoco argues that this language is so broad that it could apply to a huge number of people, including lobbyists. To show the influence top lobbyists have, Percoco’s brief cites a 2012 study which found that lobbyists whose key Senators leave office lose a whopping $182,000 in annual revenue.
The Justice Department rejects the analogy, arguing that none of these well-connected lobbyists function, even informally, as public officials. That would be reasonable, except that the test for who functions as a public official is so murky — a major factor is whether government employees feel obliged to treat the lobbyist’s requests as commands. There are plenty of lobbyists so powerful that the lowliest bureaucrat trembles to cross them.
Consider the very real case of a legislator convicted under the statute after voting the way a lobbyist urged. In upholding the conviction, the U.S. Court of Appeals for the Third Circuit explained that even though entertaining legislators was part of the job, here the lobbyist — who was also convicted — had entertained the legislator too lavishly. How much is too much? Read the court’s guidance for yourself:
“[A] lobbyist does not commit honest services fraud … if his ‘intent was limited to the cultivation of business or political friendship.’ He commits those violations ‘only if instead or in addition, there is an intent to cause the recipient to alter her official acts.’ “
This guidance fails to guide. It seems to say that a lobbyist is innocent as long as the lobbyist doesn’t lobby.
This is Percoco’s point, and it’s a good one. Whatever one thinks of his conduct, the way the lower courts have construed the statute leaves prosecutors far more leeway than Congress likely intended. Critics who call the case a classic example of prosecutorial overreach aren’t entirely wrong.
The true problem isn’t the prosecutors but the statute itself. Put Percoco aside and think instead about the rest of us. A minimum democratic fairness demands that crimes be spelled out with crystalline clarity. When we interact with the government that serves us, we should not be left to guess whether we’re breaking the law.
