A government attorney faced tough questioning Monday from U.S. Supreme Court justices over concerns that the federal bribery statute often used to prosecute public officials is vague and potentially criminalizes innocuous gift-giving by people from all walks of life.
The oral arguments came in a case involving James Snyder, the former mayor of Portage, Indiana, who was convicted of taking a $13,000 “consulting” fee from a garbage truck contractor that had recently won two lucrative contracts with the town.
The statute Snyder was convicted under, which is commonly referred to as “666” because of its number in the federal criminal code, makes it illegal to “corruptly” accept anything over $5,000 in value with the intention of being “influenced or rewarded” for an official act, regardless of whether there was a prior quid-pro-quo agreement.
How the high court comes down on the issue could have a resounding impact on political corruption prosecutions in Illinois — including the case against former House Speaker Michael Madigan, which is set for trial in October.
A decision is expected before the court session ends in late June or early July.
During intense questioning in Washington D.C. on Monday, many of the justices seemed sympathetic to Snyder’s argument that the statute’s vague wording could sweep up all types of legal gratuities that people offer every day, such as giving a doctor a fruit basket for exceptional treatment, taking a teacher or coach who gave special attention to your child to dinner, or thanking a firefighter who rescued your kitten form a tree with concert tickets.
Justice Amy Coney Barrett at one point started a line of questioning by telling the government’s attorney, Colleen Roh Sinzdak, “I’m increasingly worried about the government’s position.”
The nearly two-hour arguments included offbeat references to plastic surgeons, the Cheesecake Factory, Chipotle, Al Capone, and the cheap Trader Joe’s wine known as “Two Buck Chuck,” as in whether that bargain bottle is acceptable while the expensive product of a noted vineyard isn’t.
But over and over, the justices kept coming back to concerns over the word “corruptly” and how people are supposed to know where the line is.
“What is innocuous and what is not?” Justice Brett Kavanaugh asked Sinzdak, an assistant to the solicitor general, at one point. “And just as important, how is the official supposed to know ahead of time?”
Borrowing from an example offered by Snyder’s attorney, Justice Neil Gorsuch said, “I hate to do this but…how does somebody who accepts a trip to the Cheesecake Factory for nice treatment during a hospital visit…how does that person know if it falls on the wrongfulness side?”
Sinzdak argued that there is a “break” in the statute that protects such innocent conduct by forcing prosecutors to prove that the gift-taker did so knowing that it was wrongful, whether its a politician violating state statute or a hospital worker running afoul of the organization’s ethical rules.
“Congress was not doing something wild and crazy,” Sinzdak said. She also said that corruptly has been defined through other court rulings as “immoral” or “wrongful,” offering a roadmap that would ward off prosecutions for innocent conduct.
Under questioning by Associate Justice Elena Kagan, Sinzsak also pointed out there are a number of “safe harbors” in the statute that carve out other legal behavior, including limiting it to gifts worth $5,000 or more that are connected to some official government act or business transaction, and making express exceptions for “bona fide salary” payments and charitable contributions.
As for “an apple-for-the-teacher” type gifts, Sinzdak said such hypotheticals have no real-world purpose because prosecutors would never bring charges in such cases.
“They’re just not even on the radar of the government,” she said.
Sinzdak also argued that illegal gratuities being included in a bribery statute that requires a quid pro quo because in they end they do “the same harm” whether an agreement was struck in advance or not.
“If there is a beforehand agreement, in (Snyder’s) case it doesn’t change anything, because it’s crystal clear that what he was doing, taking a public act intending to get that private reward … he’s doing the public act in order to line his own pockets,” Sinzdak said.
In rebuttal, Snyder’s attorney, Lisa Blatt, called the government’s arguments “preposterous” and, at times, “gibberish.” Blatt said the idea that the term “corruptly” is somehow tied to a consciousness of wrongdoing, as Sinzdak claimed, seemed like “Senate room drafting language” rather than something rooted in law.
“It sounds like in moot court they worked this out because they thought it sounded good,” Platt said.
Among the other justices asking questions Monday were Justice Sonya Sotomayor and Samuel Alito.
Meanwhile, Justice Clarence Thomas was absent from the court Monday with no explanation. Thomas, 75, also was not participating remotely in arguments, as justices sometimes do when they are ill or otherwise can’t be there in person, according to the Associated Press.
Chief Justice John Roberts said Thomas that his colleague would still participate in the day’s cases, based on the briefs and transcripts of the arguments.
Thomas has been under fire for news reports showing he has taken lavish gifts from wealthy Republican megadonors, including some who have business before the court.
The high court’s decision to hear Snyder’s case has already had repercussions in Chicago. Since the Supreme Court’s announcement in December, Madigan’s trial was delayed from April 1 until October to allow time for the decision to come out and be digested before going forward.
In a parallel case, a different judge agreed, over the objection of prosecutors, to delay sentencings for the “ComEd Four,” a group of lobbyists and executives convicted of conspiring to bribe Madigan by showering his associates with do-nothing consulting jobs and other perks.
In Madigan’s case, prosecutors have noted that the 666 statute is charged in only five of the 23 counts of the racketeering indictment.
Among them is a pivotal conversation from August 2018 when Madigan met in his downtown Chicago law office with then-Ald. Danny Solis to discuss Solis’ appointment to a lucrative state board position.
Solis, who unbeknownst to Madigan was an FBI mole, made it clear he’d helped bring law business to Madigan and wanted something in return once he retired from City Hall, perhaps a position with the Commerce Commission or Labor Relations Board, which Solis said were both “very generous in their compensation,” according to federal prosecutors.
“Don’t worry about it,” Madigan allegedly said during the conversation, which was secretly being videotaped by Solis. “… Just leave it in my hands.”
In addition to the Solis board appointment, the statute is used to charge an alleged scheme to steer a ComEd board seat to Democratic political operative Juan Ochoa, payments ComEd made to former 13th Ward Ald. Frank Olivo, former 23rd Ward Ald. Michael Zalewski and others, and an alleged push by Madigan to win law business from the developers of a parcel in Chinatown.
In their objection to delaying the trial, prosecutors said they were willing to forgo any argument to the jury that the benefits provided to Madigan “were gratuities, that is, merely rewards for past actions Madigan had already committed to take.”
U.S. District Judge John Robert Blakey sided with Madigan’s team, however, saying “it’s better to do it right than to do it twice.”
Madigan, 81, is charged in a racketeering indictment alleging he participated in an array of bribery and extortion schemes from 2011 to 2019 aimed at using the power of his public office for personal and political gain.
Also charged was Madigan’s longtime confidant Michael McClain, 76, a former state legislator and lobbyist who was convicted in the ComEd Four trial last year of orchestrating an alleged scheme by the utility giant to secretly steer hundreds of thousands of dollars to Madigan-backed operatives.
Madigan and McClain have each pleaded not guilty in their case, which is set to begin on Oct. 8.
Meanwhile, Chicago’s legal community will watch in earnest how the Snyder case unfolds before the Supreme Court.
Federal prosecutors have said the plain language of the statute leaves no question that doling out rewards to a politician for an official act is a type of “pernicious graft” that Congress clearly wanted to outlaw.
“As lawmakers have recognized for centuries, corrupt gratuities give rise to deceitful behavior by their recipients, who may carry out their duties in a way designed to maximize the rewards to themselves instead of to the local government or other federally funded entity they serve,” attorneys for the government wrote in their response brief last month.
Snyder’s attorneys, meanwhile, have made the case that the line between “benign” gifts and illegal rewards is murky at best.
“If it’s that ‘no big deal,’ let the government prove quid pro quo,” Blatt argued Monday. “Just let ’em…Here they have six different ways they definite corrupt…I don’t know what ‘benign’ means. I don’t know what ‘immoral’ means.”
Evidence at Snyder’s trial showed that shortly after he helped steer contracts for city garbage trucks to a local firm, Great Lakes Peterbilt, a cash-strapped Snyder showed up at the business asking for a $15,000 loan.
The firm’s president eventually agreed to pay Snyder $13,000, supposedly for contract work involving information technology and human resources consulting, work that Snyder was not qualified to do and never performed.
Tribune wires contributed.
jmeisner@chicagotribune.com