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* Tribune…
Under the governing case law, prosecutors do not have to show a specific quid pro quo existed between Madigan and the four defendants, only that there was a corrupt intent to provide the stream of benefits to Madigan in order to win his influence over legislative acts.
After testimony wrapped last week, lawyers for the defendants argued strenuously for instructions to be provided to the jury that would require a more specific nexus between the ComEd legislation and Madigan’s actions.
But Leinenweber stuck largely to his previous rulings that the 7th U.S. Circuit Court of Appeals requires only that the defendants passed gratuities or rewards to the speaker in the hope they would influence Madigan in some official capacity.
“The difference between the regular lobbying and corrupt lobbying is not only the intent to influence, as focused on by defendants, but the action which intends to provide ‘something of value,’ either given or offered, in order to influence the official,” the judge wrote in a ruling last year.
Leinenweber on Thursday acknowledged that the issue of when a gratuity or reward for a public official becomes a bribe is in flux in the federal courts nationwide. But for this trial, the prevailing law is what the appellate court in Chicago has held, he said.
A significant chunk of lobbying could be rendered illegal if “the action which intends to provide ‘something of value,’ either given or offered, in order to influence the official” stands.
* More from the debate…
Judge: "You can make your record. Eventually it’s going to probably get to the Supreme Court. Either you’re right or you're wrong, and if you’re right…"
"Congratulations," Bhachu interjects.— Jason Meisner (@jmetr22b) April 20, 2023
* Here’s an example of the circuit split from last year…
By embracing a stricter interpretation of a federal bribery law and hardening a circuit court split, the Fifth Circuit’s remand of a Texas real estate developer’s conviction furthers a trend of federal judges narrowing the application of anti-corruption statutes and makes the U.S. Supreme Court more likely to weigh in on the issue again.
A three-judge panel on Tuesday overturned the conviction and eight-year sentence of Ruel Hamilton, a politically connected affordable housing developer in Dallas who was found guilty by a Texas federal court jury in June 2021 of illegally funneling funds to a pair of city council members. The appellate panel reached its decision after concluding the jury was improperly instructed to determine whether Hamilton had paid either bribes or gratuities, with both considered corrupt.
From that opinion…
We conclude that § 666 does, in fact, require a quo; a quid alone will not suffice. And the jury instruction that the district court gave did not convey that. Thus, Hamilton’s convictions must be vacated.
From a footnote…
Lurking just beneath the surface is a hoard of constitutional problems raised by a
broad reading of § 666. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 247 (2012) (“A statute should be interpreted in a way that
avoids placing its constitutionality in doubt.”). Treating § 666 as though it covers all sorts
of interactions with local public officials raises First Amendment, federalism, and due-
process concerns. See McDonnell v. United States, 136 S. Ct. 2355 (2016); McCormick v.
United States, 500 U.S. 247 (1991). As one of our colleagues put it, when § 666 is used to “prosecute purely local acts of corruption,” it is arguably unconstitutional because it is not “necessary and proper to carry into execution [Congress’s] spending power.” United States v. Lipscomb, 299 F.3d 303, 364–77 (5th Cir. 2002) (opinion of Smith, J.). We need not reach those issues in this case because we can construe the text in a way that comports with the Constitution.
With its opinion, the Fifth Circuit is now in the minority, having joined two other circuits in the U.S. that said the federal bribery statute in question criminalizes only quid pro quo bribes and not gratuities. Five other federal circuits have ruled that the law covers both bribes and illegal gratuities.
posted by Rich Miller
Monday, Apr 24, 23 @ 9:58 am
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I’ll let the lawyers argue about what the law currently is; I think the law SHOULD be something close to the broader standard. If you let gifts or gratuities slide, then we’ll just continue the “wink wink, nudge nudge” form of bribery that’s been put forth here. Do we really want to let bribery slide as long as no one says the words out loud? It makes no sense. Maybe there are 1A issues that have to be resolved, let’s talk about that, but we should be pushing for “No one is allowed to influence lawmakers with gifts”. That should be the goal.
Comment by Perrid Monday, Apr 24, 23 @ 10:04 am
The difference between legal and illegal are not to influence is corrupt intent. Paying for no show lobbyists . Structuring the contracts to get them off the books. Hiring someone who is not qualified to be on your board. Excessive hiring of target politicians interns. Etc etc. And statements in wiring and on wires that you knew the above likely wouldn’t pass muster with the new guy who actually knows the law —- pretty good evidence of corrupt intent. Maybe not in the political world but to a regular Joe juror for sure. But we shall see.
Comment by Watchful eye. Monday, Apr 24, 23 @ 10:06 am
Yes. Been saying that all along.
Comment by Anyone Remember Monday, Apr 24, 23 @ 10:09 am
===Maybe there are 1A issues that have to be resolved, let’s talk about that===
“Congress shall make no law… abridging… the right of the people… to petition the Government for a redress of grievances.”
Comment by Rich Miller Monday, Apr 24, 23 @ 10:12 am
===Paying for no show lobbyists===
So ComEd is a “babe in the woods” deciding a “blind eye” to the corporate aspect of contract hires… you’d think the entity or those hiring would face corporate scrutiny for such business practices
To the post,
My own questions to this trial have nothing to do with the ethics, they are lacking, full stop, that’s not up for debate, for me.
Criminality to the business of lobbying?
Then why have any seasoned lobbyists with decades of experience or institutional knowledge be involved with acceptable ways of influence which may include fundraising (isn’t money “free speech”?) or political cover or infrastructure?
It’d be like ABATE (I am not picking on them, quite the contrary, they are an outstanding example of leverage and influence) being denied withholding campaign help on bills, but as an organization the choices to “sit or work” on a campaign is predicated on legislative actions
Comment by Oswego Willy Monday, Apr 24, 23 @ 10:13 am
Consider, the majority of the U.S. Supreme Court, and their saying they themselves can get gifts and not even report the gifts. I predict any guilty verdict of the ComEd Four will be overturned.
Comment by DuPage Monday, Apr 24, 23 @ 10:13 am
===No one is allowed to influence lawmakers with gifts”. That should be the goal.===
Define “gift”
What “of value” can be the measure of actual campaign assistance of workers’ assistance
Comment by Oswego Willy Monday, Apr 24, 23 @ 10:15 am
=== I’ll let the lawyers argue about what the law currently is; I think the law SHOULD be something close to the broader standard. If you let gifts or gratuities slide, then we’ll just continue the “wink wink, nudge nudge” form of bribery that’s been put forth here. Do we really want to let bribery slide as long as no one says the words out loud? It makes no sense. Maybe there are 1A issues that have to be resolved, let’s talk about that, but we should be pushing for “No one is allowed to influence lawmakers with gifts”. That should be the goal. ===
What about campaign contributions and fundraising? Can you provide an example of legal lobbying under your broader definition of bribery?
Comment by Hannibal Lecter Monday, Apr 24, 23 @ 10:23 am
“Can you provide an example of legal lobbying under your broader definition of bribery?”
Actual speech. Talking, being an advocate. No wining and dining, no promises or “implied” quid pro quos. Again, I get what I want and what the courts are going to allow probably don’t quite line up. SCOTUS has said that money is speech, as many logical inconsistencies as that creates. But we should make it as tight as we can. A law shouldn’t get passed because a lobbyist took someone out to dinner, or because their employer contributed $500,000 to a super PAC (just made the number up, not referring to anything).
Comment by Perrid Monday, Apr 24, 23 @ 10:31 am
Does the 7th Circuit’s standard make it illegal for me to tell a legislator that I will give that legislator something of value, i.e., my vote, a lawn sign, a favorable letter to a newspaper, if the legislator votes favorably on a bill of interest to me? Is it illegal for one legislator to tell another, “If you vote yes on my bill, I’ll vote yes on yours”?
Comment by Southside Markie Monday, Apr 24, 23 @ 10:32 am
===A law shouldn’t get passed because a lobbyist took someone out to dinner===
You think that actually happens?
Also, the Gift Ban Act has a limit: “Food or refreshments not exceeding $75 per person in value on a single calendar day”
Comment by Rich Miller Monday, Apr 24, 23 @ 10:34 am
===But we should make it as tight as we can. A law shouldn’t get passed because a lobbyist took someone out to dinner, or because their employer contributed $500,000 to a super PAC (just made the number up, not referring to anything).===
The gift of knowing the stock and trade of lobbying isn’t at all that simple.
If it was then it wouldn’t matter who handed out checks or what anyone did to discuss legislation under the dome in Illinois or any legislative body, at any level.
Comment by Oswego Willy Monday, Apr 24, 23 @ 10:36 am
The issue is the mens rea part of the statute. The mens rea is corruptly. The 5th Circuit says that you need a quid pro quo to meet the mens rea. The 7th says that you can act corruptly even if you don’t specifically ask for any governmental action. You can corruptly give a bribe to garner goodwill without ever asking for any governmental action. I’m with the USA here. You cant tell what SCOTUS will do these days, but you don’t have a First Amendment right to bribe people.
Comment by Three Dimensional Checkers Monday, Apr 24, 23 @ 10:40 am
The ComEd case is clearly about giving people actual favorable treatment that had pecuniary benefit (i.e. jobs with salary) that they would not otherwise have gotten, to get favorable legislative outcomes. That cannot be permitted. Period.
I’m largely uncomfortable with, but accepting of donations to campaigns to get favorable legislative outcomes, so long as we actually enforce rules that prevent candidates from using campaign coffers as slush funds. People should able to bolster candidates they want to achieve policy outcomes they want.
But we need to be very, very, very clear about the distinction between “helping get someone elected to achieve the outcome I want” and “paying someone/providing favors to someone who is already elected and in power to achieve the outcome I want.”
Comment by Homebody Monday, Apr 24, 23 @ 10:47 am
=== Actual speech. Talking, being an advocate. ===
So basically nothing other than giving your pitch on a bill.
I don’t think companies are going to pay lobbyists for doing something that a high school student can do.
Comment by Hannibal Lecter Monday, Apr 24, 23 @ 10:52 am
===I don’t think companies are going to pay lobbyists for doing something that a high school student can do.===
Ball game.
Lobbying is a trade and a skill
Ignoring what lobbyists legally do and how they do it with institutional and legislative knowledge, that’s the job.
Comment by Oswego Willy Monday, Apr 24, 23 @ 10:55 am
To the post:
One of the things that makes this trial fascinating is what distinguishes it from most other trials. For example, in a murder trial, you know what the crime is.
Here, there is a general understanding of the facts - about what happened here. The dispute is whether the facts actually amount to a crime. That two people can hear the same facts and have different opinions as to whether or not a crime exists is extremely unusual. Criminal caselaw generally frowns on that kind of ambiguity in the application of criminal statutes.
This case (and any future appeals that may occur here) will have a long lasting impact on how anti-corruption statutes are applied going forward.
Comment by Hannibal Lecter Monday, Apr 24, 23 @ 10:59 am
Frankly just don’t see any gray area here.
Of course, I was not in the court room, but I did keep up with published reports on the conduct of these defendants.
The evidence IMHO is overwhelming and should lead to a guilty verdict. Perhaps long jail sentences can act as a deterrent to this kind of behavior. The financial benefits to these “lobbyists” should be used as restitution to those that suffered the consequences of their illegal activity.
Hopefully they will take advantage of the opportunity they will get at sentencing to apologize for the shame they caused their families, co-workers and friends to suffer.
Great job by the USDA and the FBI.
Comment by Back to the Future Monday, Apr 24, 23 @ 11:08 am
I think the issue is muddy enough that the jury will give a split decision, finding one or two of the defendants not guilty.
Comment by Friendly Bob Adams Monday, Apr 24, 23 @ 11:12 am
I remember Jonah Edelman bragging on video about how he “locked up” the services of lobbyists across the political spectrum for the bill restricting teacher bargaining rights, so that the lobbyists would be conflicted out of representing the unions. Hiring attorneys to conflict them out is legal, who would hiring lobbyists for creating a conflict be any less legal?
Comment by Ares Monday, Apr 24, 23 @ 11:14 am
=== But we need to be very, very, very clear about the distinction between “helping get someone elected to achieve the outcome I want” and “paying someone/providing favors to someone who is already elected and in power to achieve the outcome I want.” ===
So for campaign contributions, do you have to label them as “bribe” or “non-bribe”? How do you actually police this?
Comment by Hannibal Lecter Monday, Apr 24, 23 @ 11:18 am
watchful eye,
“–Hiring someone who is not qualified to be on your board.–”
I’m not sure there are often rules about qualifications to be on a board. A skill often highly rated is the ability to get along with others–something most of us learned in kindergarten and pre-school. Specialist knowledge in finance, law, or other topics may be required for some board members but not all.
Comment by cermak_rd Monday, Apr 24, 23 @ 11:27 am
====“No one is allowed to influence lawmakers with gifts”.====
Well, since us lobbyists have to report any gifts or meals and entertainment to the SOS the feds would already have a handy, lengthy list for them to use to indict probably a couple thousand of us.
Comment by Been There Monday, Apr 24, 23 @ 11:27 am
== - Hannibal Lecter - Monday, Apr 24, 23 @ 10:52 am:
=== Actual speech. Talking, being an advocate. ===
So basically nothing other than giving your pitch on a bill.
I don’t think companies are going to pay lobbyists for doing something that a high school student can do. ===
Obviously you haven’t spent much time with rank and file lobbyists. Like legislators, all lobbyists are not the same.
Comment by Lobsters Monday, Apr 24, 23 @ 11:32 am
Maybe the US Supreme Court needs to weigh in on this and maybe this is the case that they ultimately review. Who knows and we’ll have a long wait to get there.
In the meantime, this jury has heard Mike McClain and read his repeated and incessant e-mails badgering ComEd to fulfill each and every request he’s relating in behalf of Speaker Madigan. And if they don’t move fast enough, he tells them that somebody’s nose will get out of joint or there will be a fire drill, etc.
The punchline to this story is that the last bill in question, that Madigan sent the code to McClain to kill, was a major initiative of Madigan’s daughter. Not sure the jury heard this or if it was excluded. Maybe it will come up in the closing argument, but for me, that’s where the Speaker chose ComEd and his pals over his daughter’s career.
I doubt it was worth it in the end. I think the feds have shown corrupt intent. I think there is enough to acquit based on the jury instructions. Some of these defendants will have finished their sentences before the US Supreme Court gets around to this one.
Comment by 47th Ward Monday, Apr 24, 23 @ 11:36 am
Sorry. I meant to say there is enough to convict.
Comment by 47th Ward Monday, Apr 24, 23 @ 11:40 am
=== Obviously you haven’t spent much time with rank and file lobbyists. Like legislators, all lobbyists are not the same. ===
You are wrong. I do spend time with rank and file lobbyists quite often - although I do agree with you that not all lobbyists are the same. Some are much more effective than others.
Comment by Hannibal Lecter Monday, Apr 24, 23 @ 11:45 am
===Define “gift”===
In the Reagan era, there was the philosophy “Not a cup of coffee” from a group (whose name is lost to history). Their position? If the “Perpetual Motion Society” hosted a legislator at an awards banquet, (s)he could accept the award … but PMS would also have to provide a 1099 for the meal / drink.
Obviously, they failed. But the question is valid.
Comment by Anyone Remember Monday, Apr 24, 23 @ 11:52 am
“The difference between the regular lobbying and corrupt lobbying…”
There is the rub.
Comment by Dotnonymous Monday, Apr 24, 23 @ 11:53 am
===philosophy===
Philosophy, ethics, morality…
What’s the law? It’s there.
===although I do agree with you that not all lobbyists are the same. Some are much more effective than others.===
If one thinks the only difference is because of meals, drinks, or cash, then one might not understand the trade of lobbying
Not insinuating you don’t, there are, apparently, others that think “anyone can just lobby”
It’s a trade where the skill set is measured by the rate they can easily charge.
Comment by Oswego Willy Monday, Apr 24, 23 @ 11:56 am
My personal philosophy is to have legislators buy my drinks and meals. Makes the reporting much easier.
On the issue of grey areas, I had a lobbyist in Wisconsin explain to me that his practice was so successful and had great relationships with legislative leaders because he regularly did volunteer campaign work. He said knocking on doors was more valuable than the contributions he gave. I didn’t question the thinking because he got the bill I wanted passed.
Comment by CLJ Monday, Apr 24, 23 @ 11:58 am
=== If one thinks the only difference is because of meals, drinks, or cash, then one might not understand the trade of lobbying ===
I agree with you here Willy. The best lobbyists are the ones with knowledge skills and abilities that many do not understand. Legislative process. The art of persuasion. Building and maintaining relationships. There is a lot of finesse to successful lobbying. The average person does not understand what a lobbyist does to be successful. I think the lines that being drawn here in this case do bring in to question other types of behavior which most people would not have ordinarily deemed to be corrupt. The lawyers and the judges will have to work this one out.
Comment by Hannibal Lecter Monday, Apr 24, 23 @ 12:09 pm
Hate to throw another element into the already muddy situation. But, it seems ComEd’s agreement to simply pay a fine reflected an explicit or implicit acceptance that its conduct simply was the only response to the Speaker’s automatically shutting down proposals favorable to ComEd. And, especially in light of the numberous McClain statements to the effect of “my real boss is the Speaker,” could any of the present defendants could have adopted a similar line of defense?
Comment by Midwesterner Monday, Apr 24, 23 @ 1:35 pm
“ ===A law shouldn’t get passed because a lobbyist took someone out to dinner===
You think that actually happens?”
Lol, no, I don’t think anyone is that cheap. I do think that it can build up. How many favors can you do your “friends” (and vice versa, of course) before your judgement becomes suspect? I would err on the side of caution, even if that makes it harder for lobbyists to build relationships.
Comment by Perrd Monday, Apr 24, 23 @ 1:48 pm
There are pattern jury instructions for the Northern District of Illinois if anyone is interested: https://tinyurl.com/3ctnxu39. The defense can strenuously object all they want. The district court is not going to deviate from the pattern jury instructions.
Comment by Three Dimensional Checkers Monday, Apr 24, 23 @ 2:09 pm
==== But, it seems ComEd’s agreement to simply pay a fine reflected an explicit or implicit acceptance that its conduct simply was the only response to the Speaker’s automatically shutting down proposals favorable to ComEd. =====
I am trying to find the filing but I thought that the judge would not allow the feds to introduce Comed’s plea and payment to be introduced. Still looking for that.
Comment by Been There Monday, Apr 24, 23 @ 3:22 pm
===Still looking for that===
I believe that is correct. It was handled in pre-trial motions with the Judge ruling that the ComEd plea deal/fine would be prejudicial to the defense.
Very prejudicial I think. The prosecution was not able to show that ComEd itself thought the actions of its management ran afoul of normal practices, so much so that they didn’t want to risk further damages. ComEd cut Prammagiore, Dominguez, Marquez and Hooker loose to fend for themselves. ComEd washed its hands of the whole matter and moved on. For $200 million but no admission of guilt.
I think it’s very germane to the prosecution’s case, but also makes it nearly impossible for the defendants to get a fair trial. Tough call by the judge, but the right one I think.
Prammagiore buried herself on the stand. Cotter’s closing arguments didn’t even attempt to recast McClain’s own words from the tapes/e-mails. The defense has so far insisted that there was no evidence, despite piles of evidence staring the jury in the face.
A better strategy would have been to make Marquez the fall guy, but as the old saying goes, “the first one on the bus gets the best seat.”
Comment by 47th Ward Monday, Apr 24, 23 @ 4:30 pm
From Crains story on April 13th:
“Jurors, though, aren’t aware — or aren’t supposed to be, at least — that ComEd effectively pleaded guilty nor that Dominguez was in charge when it did. Leinenweber has agreed with defense attorneys to keep that evidence out of the trial.”
Comment by Been There Monday, Apr 24, 23 @ 4:33 pm
More prejudicial than probative…
Comment by Dotnonymous Monday, Apr 24, 23 @ 4:53 pm