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Supreme Court Ruling May Help De Blasio Avoid Charges

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Mayor de Blasio swears-in judges (photo: Ed Reed/Mayor's Office)

In June 2016, the United States Supreme Court overturned the corruption conviction of former Virginia Governor Robert McDonnell, ruling that his help to a constituent who gave him thousands of dollars in gifts did not break the law. The ruling, which examined the meaning of an “official act,” set a new precedent for corruption prosecutions and effectively increased the burden of proof for investigators.

As New York City Mayor Bill de Blasio faces a federal investigation into his administration over whether government action was promised to or taken on behalf of donors to the mayor’s causes, the McDonnell case may provide help in vindicating de Blasio and his aides. De Blasio has insisted that he and his team have behaved legally and will be exonerated -- the mayor recently agreed to be interviewed by federal agents.

De Blasio’s office has also said that the mayor himself is not the focus of the investigation. However, he could become a target depending on the evidence prosecutors have collected or if his answers at the interview were inconsistent with statements from others in the orbit of the investigation. At the same time, the McDonnell ruling could help prevent prosecutors from bringing charges against de Blasio.

In Virginia, McDonnell and his wife were convicted in 2015 on bribery charges for accepting loans and gifts equalling $175,000 from businessman Jonnie Williams when McDonnell was in office. Federal prosecutors argued that, in exchange for the gifts, McDonnell used his office to arrange meetings and host events to promote Williams’ business.

On appeal, the Supreme Court unanimously vacated McDonnell’s conviction and ruled that for an exercise of governmental power in a “question, matter, cause, suit, proceeding or controversy” to be considered an “official act,” a public official “must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition.”

This is effectively what Mayor de Blasio has argued recently, as he has admitted bringing items to the attention of his agency leaders that were of concern to donors. His deputies, the mayor said, always know to make their decisions based on the merits. No evidence has surfaced publicly showing de Blasio ordering a government act on behalf of a donor because of the donor’s monetary contribution to a de Blasio cause.

The McDonnell decision undoubtedly narrowed the interpretation of bribery law, as it pertains to the types of actions that a public official can legally perform. “That decision has changed the way prosecutors charge these cases,” said Jennifer Rodgers, a former federal prosecutor and now executive director at Columbia Law School’s Center for the Advancement of Public Integrity. “It impacts all cases. Prosecutors will definitely consider that when making charging decisions.”

Other experts see a minor change in how prosecutors will approach relevant cases under the McDonnell ruling. "It prevents prosecutors from bringing only the weakest of public corruption cases, those where the prosecution lacks even circumstantial evidence that a corrupt payoff was for something more than a chance to meet with the public official," write Arlo Devlin-Brown, a former prosecutor with the Manhattan U.S. Attorney’s office and Erin Monju, a former clerk there, in a recent New York Law Journal piece.

The Manhattan U.S. Attorney’s office seems to be winding down its investigation into whether there was quid-pro-quo involved in donations to de Blasio’s 2013 electoral campaign and now-defunct nonprofit, the Campaign for One New York. While de Blasio’s electoral campaign received a good deal of bundled money from people with city business, the Campaign for One New York received millions from such from entities, like labor unions and real estate developers. Individuals with city business are limited to $400 contributions to electoral campaigns (only recently were such restrictions created to limit groups like Campaign for One New York).

While there are a number of instances where de Blasio donors received favorable city action, the investigation is focused on about half a dozen donors, according to The New York Times.

As the 2017 mayoral race heats up, the investigation has been hanging over de Blasio, his aides, his declared and potential challengers, and the entire city for almost a year. In a twist, U.S. Attorney Preet Bharara, head of the investigating office, was on Saturday fired from his post by President Donald Trump. The investigation, which may be in its final stages, will continue without Bharara, as his leading public corruption lawyers have been on the case throughout.

(There is also an ongoing investigation, led by the Manhattan District Attorney’s office, looking into de Blasio and his associates funnelling funds to Democratic candidates for state Senate in 2014. The McDonnell case appears to have no bearing in this instance, though the mayor also insists that he and his political team did nothing illegal.)

During a Feb. 27 appearance on NY1’s Road to City Hall, de Blasio’s first interview after a four-hour meeting with federal prosecutors the prior Friday, the mayor sought to dispel the notion that he had personally intervened to direct government action in favor of a particular donor. The donor in question, Moishe Indig, a rabbi in the Satmar Hasidic community, was a fundraiser for the mayor, and the Department of Buildings had reportedly lifted a partial vacate order on two school buildings owned by him after the mayor intervened. (The news was first reported by Kings County Politics.)

De Blasio told host Errol Louis that he only knew Indig as a community leader and played no part in any DOB decision. “I don't intervene and tell agencies how to do their business,” de Blasio said. “Agencies come to their own conclusion when they look at a community concern like the concern of a house of worship, they’re going to ultimately come to their own decision, and that’s as it should be.”

In a point that directly relates to the McDonnell decision, de Blasio argued that it wasn’t improper for him to bring an issue to an agency’s attention. “[W]hen I was City Council member, Public Advocate, and, again, as Mayor, I believe it is perfectly appropriate to put an issue on an agency's plate,” he said later in the interview. “The agency has to make the decision that they see as right.”

It’s not uncommon for the mayor to pay attention to individual constituent concerns. On his weekly appearances on WNYC’s The Brian Lehrer Show, de Blasio takes questions from callers and often promises to help them with issues they raise. He does the same at local town halls that he has hosted across the city, asking his team to follow up with a person to see if they can provide assistance. The question remains, though, whether donors receive special treatment because they are donors.

In the McDonnell decision, the Supreme Court recognized that elected officials respond to constituents in many instances. Chief Justice John Roberts, delivering the unanimous opinion, wrote, “[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”

Although it’s unclear what evidence federal prosecutors may have collected so far, they will need to prove that public officials in the de Blasio administration did more than just highlight an issue for an agency to follow through on. They’re also likely taking that into consideration. The McDonnell decision came down the month after the convictions of both Sheldon Silver and Dean Skelos, former New York state legislative leaders, who were successfully prosecuted on corruption charges by the same office currently probing de Blasio. Neither has had to report to prison yet, and both are appealing their cases based on the McDonnell decision.

In New York Law Journal, Devlin-Brown and Monju argue that the McDonnell decision had “limited significance” for corruption prosecutions. “In the prototypical public corruption case—where the prosecution can make a straight-faced claim that governmental action, and not just access, was the intended aim of the bribe—McDonnell defenses will have little impact on judges and still less on juries,” they wrote, “who may fail to rally around the official who argues he was selling ‘only’ access to an elected office.”

[Related: The Risks of De Blasio’s Interview with Federal Prosecutors]

by Samar Khurshid, senior reporter, Gotham Gazette

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