High-profile NY cases raise a question: What is public corruption anymore?

It’s a scene that’s played out repeatedly in New York: A politician is publicly accused of corruption. A swarm of headlines follow. Months or even years later, the charge or conviction is overturned.

On Monday, a federal judge threw out the bulk of the case against former Lt. Gov. Brian Benjamin, who is accused of receiving thousands of dollars in campaign contributions in exchange for a $50,000 state grant to a nonprofit. The judge ruled the alleged bribe wasn’t explicit enough to sustain charges, though prosecutors immediately appealed.

The partial dismissal was the latest in a string of cases over the last 12 years in New York that have shown how increasingly difficult it is for prosecutors to get convictions on public-corruption charges. A series of court decisions in recent years have dramatically narrowed federal bribery laws, in part by requiring prosecutors to prove a public official took a specific governmental action — not just, say, set up a meeting — in exchange for a bribe.

It has left prosecutors and good government advocates wondering how to hold someone accountable for unethical behavior as the bar to win a conviction continues to rise.

“When there’s conduct that misuses public assets for personal advantage — whether it’s a personal financial or personal political advantage — then the average New Yorker sees that as corrupt,” said Susan Lerner, executive director of Common Cause New York, a good-government organization. “And our law should comply with what people rightly understand is a problem. It’s not hard.”

In the last two weeks, two other high-profile corruption cases — in addition to Benjamin’s case — have demonstrated the impact of the narrowing law, which has benefited New York officials and their associates who have been indicted on bribery and fraud charges.

• On Nov. 28, an attorney for Joseph Percoco, a former aide and close advisor to Gov. Andrew Cuomo, argued that part of his $315,000 bribery conviction should be overturned because he was not on the state payroll in 2014 when he took $35,000 from a Syracuse-area developer in exchange for state favors. Since Percoco was on Cuomo’s political campaign staff, they argue he didn’t have a “fiduciary duty” to the state, and therefore can’t be convicted of bribery.
• That same same day, an attorney for developer Louis Ciminelli argued his and former SUNY Polytechnic Institute President Alain Kaloyeros’ convictions should be overturned because no money changed hands when they allegedly rigged a bid for a state construction contract. The contract, which was at the center of the fraud conviction, led to Ciminelli’s company getting $750 million in work, in part to build a Tesla solar factory in Buffalo.

Both the liberal and conservative Supreme Court justices appeared sympathetic to Percoco and Ciminelli’s arguments, signaling they are likely to overturn the convictions before ending their term in June.

Sarah Krissoff, a former assistant U.S. Attorney in Manhattan who is now a partner at the law firm Day Pitney LLP, said prosecutors know that public-corruption cases have a reputation of being hard.

“But they should be hard,” she said. “There’s a reason for that.”

Krissoff pointed to Benjamin’s case. Politicians are essentially required to raise money for their election campaigns if they want to keep their jobs. Having ambiguous laws about what constitutes corruption when it comes to campaign fundraising — which could make it easier for prosecutors to bring a case — wouldn’t be fair to politicians, she said.

“If we’re asking people to serve as political figures in our society, they ought to have some clarity on what they are permitted to do or not permitted to do in connection with fundraising,” she said. “And to the extent there is ambiguity in that, it’s really up to the court and Congress to clarify that ambiguity.”

Lerner said the “common-sense reaction” to the conduct by Benjamin, Percoco and others is simple: “Oh, that’s corrupt.”

“When you have that common-sense reaction to conduct that misuses public assets for personal advantage — whether it’s personal financial or personal political advantage — then the everyday New Yorker sees that as corrupt, and our law should comply with what people rightly understand is problematic,” Lerner said.

Lerner faulted the Supreme Court for making it more and more difficult to prosecute such cases, and she worries that it may embolden bad actors to enrich themselves through public work.

“If the U.S. Supreme Court is hell bent on eliminating the ability to address public corruption, of course it can allow misguided officials to fool themselves further that they won’t be caught,” said Lerner.

Established legal precedent

The string of Supreme Court decisions narrowing public-corruption laws far predates Percoco and Ciminelli, going back more than a decade. It has had a dramatic effect on a number of high-profile New York cases.

In 2010, the Supreme Court significantly narrowed the “honest services” fraud law in a case involving a former Enron executive. Essentially, the court ruled that someone can only be convicted of defrauding the public of their honest services if they took a bribe or kickback related to their public work.

That led the courts to overturn former New York state Senate Majority Leader Joseph Bruno’s 2009 honest-services fraud conviction and allow for a second trial, where a jury found him not guilty.

In 2016, the top court vacated the conviction of former Virginia Gov. Bob McDonnell, ruling a public official has to do more than set up a meeting or organize an event in order to be convicted of taking a bribe in exchange for an “official act.” Instead, prosecutors would have to prove that a public official took a specific action, such as voting for a bill or obtaining a grant in exchange for a benefit.

The McDonnell ruling directly led to former New York Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos having their similar convictions overturned in New York — though the courts allowed for a retrial under the new, narrowed definition of the law, and both men were convicted a second time.

“This all goes back to the McDonnell case, where the Supreme Court seems to have completely abandoned common sense and 200-plus years of American experience in terms of what actually is corruption to narrow it down to this extraordinarily limited, unrealistic definition,” Lerner said.

Building a case

Krissoff, the former federal prosecutor, spent two years in the public corruption unit of the Manhattan U.S. Attorney’s office. She said attorneys in that unit investigate far more cases than they choose to prosecute — for every 10 cases they take on, one or two may result in charges, she said.

“Very often, there’s sort of a whiff of wrongdoing and something just smells off,” she said. “But you can’t track down the evidence to prove it, or it just doesn’t fit neatly within what Congress has prescribed as illegal. So you have conduct that doesn’t seem like it is particularly upstanding, but it just doesn’t fit within the federal laws on conduct that is prohibited.”

It’s not just a problem for federal prosecutors, either.

New York’s state law says someone is guilty of bribery if someone provides a public official with a benefit “upon an agreement or understanding” that the official will take an action, like a vote or a judgment.

But in 1992, the Court of Appeals — the state’s highest court — took on a case involving a Manhattan hotel employee who tried to slip cash to fire inspectors who found violations. That case ended up setting a precedent, strictly interpreting the bribery law to require a clear “understanding” between the bribe maker and bribe taker — and making clear that “intent” to influence someone isn’t enough to secure a conviction.

“True, these cases are usually circumstantial and inferential; the underlying crimes are, after all, often perpetrated subtly with winks, nods and walks in the park,” then-Judge William Bellacosa wrote in the court’s majority opinion. “However, those difficulties cannot justify a deviation from the rigorous rules, especially for proof of all elements of a crime beyond a reasonable doubt.”

In 2013, the state District Attorneys Association called for a change in New York’s bribery law that would allow DA’s to prosecute someone if they give a public official a gift “with the intent to influence” their actions.

Since then, at least two state senators — Sen. Brad Hoylman of Manhattan and former Sen. Todd Kaminsky, an ex-prosecutor from Long Island — introduced bills to make the change, but neither have been voted into law.

“We’d like to see that bill move forward,” Lerner said of Kaminsky’s bill. “We’d like to see somebody else pick it up and actually pass it into law.”

Gov. Kathy Hochul, who appointed Benjamin as her lieutenant governor shortly before he was charged, told reporters last week that she’s open to examining the state’s ethics laws, given the Supreme Court arguments in the Percoco and Ciminelli cases.

“It’s important that people know that we take taxpayer dollars very seriously, that they are invested and allocated based on strong principles and not access to individuals, as has happened in the past,” she said. “It’s an opportunity to show our priorities and how I’m going to lead over the next four years.”