Second Circuit Holds No Special Standard for Charging Campaign Contributions As Bribes
If the case is not successfully appealed, we may have an opportunity to see whether the volume of campaign contribution bribery cases in the Second Circuit increases, and whether the government brings any cases that appear to infringe on the First Amendment interests of campaign contributors and candidates.
June 10, 2024 at 02:07 PM
21 minute read
What You Need to Know
- In March, the Second Circuit reversed the dismissal of the three top counts of the indictment on bribery charges of New York's then-sitting Lieutenant Governor.
- The lower court dismissed these counts before trial, on the ground that the indictment did not even allege certain facts that the government was legally required to prove in order to sustain the bribery claims.
- Perhaps the Second Circuit's decision is not so clear cut, and the ex-Lt. Governor might have a receptive audience if he seeks certiorari to the Supreme Court on the question of whether there is a heightened quid pro quo standard for bribes involving campaign contributions.
On March 8, 2024, the United States Court of Appeals for the Second Circuit issued an opinion reversing the dismissal of the three top counts in the indictment of Brian Benjamin, New York's then-sitting Lieutenant Governor: federal programs bribery (in violation of 18 U.S.C. §666(a)(1)(B)), honest services wire fraud (in violation of 18 U.S.C. §§1343 and 1346), and a conspiracy to commit those crimes. See, United States v. Benjamin, 95 F.4th 60 (2024). These bribery charges all stemmed from allegations that in exchange for campaign contributions that Harlem real estate developer Gerald Migdol made to Benjamin's unsuccessful campaign for New York City Comptroller, Benjamin agreed to use, and did use, his power as a sitting state senator in an effort to direct state funds to a non-profit organization Migdol ran.
Judge J. Paul Oetken of the Southern District of New York had dismissed these counts before trial, a step rarely taken in a federal criminal case, on the ground that the indictment did not even allege certain facts that the government was legally required to prove in order to sustain the bribery claims. Specifically, Judge Oetken held that the indictment was insufficient on its face because: a) it did not allege that there had been an explicitly stated "quid pro quo" agreement between Migdol and Benjamin; and b) such an allegation (and ultimately proof) of an expressly stated quid pro quo agreement was legally required in a case where the alleged "quid," meaning the bribe payment, was a campaign contribution. Judge Oetken also held that in non-campaign contribution cases, by contrast, proof (and therefore an allegation) of an expressly stated quid pro quo agreement was not required; instead, in non-campaign contribution cases proof of the necessary quid pro quo agreement could instead be inferred by the jury from evidence of all the facts and circumstances before it.
Judge Oetken did not draw this distinction between campaign contribution cases and other kinds of bribery cases from whole cloth. Rather, it was derived from McCormick v. United States, 500 U.S. 257 (1991), where the Supreme Court stated that because making campaign contributions is a traditional part of American politics, campaign contributions can constitute the "quid" in a bribery case "only if the payments are made in return for an explicit promise or undertaking" by the official to perform or not to perform an official act. (While McCormick concerned the offense of extortion under color of official right (18 U.S.C. §1951, which is also known as "Hobbs Act Extortion"), courts and litigants have treated the "quid pro quo" requirement of the major federal bribery statutes (Hobbs Act Extortion, as well as 18 U.S.C. §201 (bribery of a federal official or witness), 18 U.S.C. §666(a)(1)(B) and (a)(2) (federal programs bribery), and 18 U.S.C. §1346 (honest services fraud) identically in this respect.) This language, and Justice Kennedy's concurrence the following year in Evans v. United States, 504 U.S. 255 (1992), where he wrote that the required quid pro quo did not have to be an "express" agreement, or else the bribery statute could be frustrated by a "wink and a nod," were interpreted by the Second Circuit in United States v. Garcia, 992 F.2d 409 (2d Cir. 1993) and United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) to impose just such a heightened requirement for an explicitly stated quid pro agreement in campaign contribution bribery cases, and those cases only.
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