The U.S. Supreme Court on Wednesday threw out a key part of the federal bribery statute often used in many Chicago-area corruption cases — including that of ex-Illinois House Speaker Michael Madigan — saying it does not apply to “gratuities” given to elected officials after the fact.
In the opinion, which has been highly anticipated in Chicago’s federal court, the justices sided 6-3 with the former mayor of Portage, Ind., James Snyder, who argued to the nation’s highest court that the anti-corruption law under which he was convicted is vague and could potentially criminalize innocent, everyday conduct.
The ruling brought an immediate reaction in the most recent high-profile Chicago corruption case that relied heavily on the bribery statute, the so-called “ComEd Four” case, in which the defendants were convicted last year in an alleged scheme by the utility to bribe Madigan.
“This case will be retried,” predicted attorney Gabrielle Sansonetti, who represents one of the four defendants, lobbyist and former City Club of Chicago President Jay Doherty.
Scott Lassar, a former U.S. attorney who represents another “ComEd Four” defendant, ex-ComEd CEO Anne Pramaggiore, said that in his view, the ComEd convictions will not stand.
“The Supreme Court has made clear that what Anne Pramaggiore was charged with was not a crime,” Lassar said.
A spokesman for the U.S. attorney’s office was not immediately available for comment.
The decision vacates Snyder’s conviction for taking a $13,000 “consulting” fee from a garbage truck contractor that had recently won two lucrative contracts with the town.
The opinion, written by Justice Brett Kavanaugh, states the bribery statute at issue in Snyder’s case, known as 666 because of its numerical section in the criminal code, “proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.”
“The Government’s so-called guidance would leave state and local officials entirely at sea to guess about what gifts they are allowed to accept under federal law, with the threat of up to 10 years in federal prison if they happen to guess wrong,” the opinion states. “That is not how federal criminal law works. And the Court has rejected the view that it should construe a criminal statute on the assumption that the Government will use it responsibly.”
The 21-page opinion also takes issue with the term “rewarded,” which it typically interpreted by prosecutors as a reward for a public official after an official act was taken.
“By including the term ‘rewarded,’ Congress made clear that the timing of the agreement is the key, not the timing of payment,” the opinion stated. “Although a gratuity or reward offered and accepted by a state or local official after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate” Section 666.
The opinion concludes that the government’s interpretation of 666 “would radically upend gratuities rules” and turn the law “into a vague and unfair trap for 19 million state and local officials.”
“We decline to do so,” the opinion concluded. “Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials.”
In dissenting against the majority, Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan wrote the 666 statute “clearly covers the kind of corrupt (albeit perhaps non-quid pro quo) payment Snyder solicited after steering the city contracts to the dealership.”
“Reading 666 to prohibit gratuities — just as it always has — poses no genuine threat to common gift giving, but does honor Congress’ intent to punish rewards corruptly accepted by government officials in ways that are functionally indistinguishable from taking a bribe,” the dissent stated.
The 666 statute has frequently been used in Chicago to prosecute public officials. The law made 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.
Proceedings in least a half-dozen Chicago-area corruption cases had been put on hold pending the Supreme Court’s decision, including sentencing in the “ComEd Four” case and the bombshell case against Madigan, which has been delayed until October so there would be plenty of time to digest the high court’s decision.
Last week, lawyers for convicted Ald. Edward Burke attempted to have his sentencing on his corruption conviction delayed until July because some of the charges involved the 666 statute. U.S. District Judge Virginia Kendall declined to do so, however, saying the Supreme Court’s ruling in Snyder would not affect Burke’s sentencing guidelines. Kendall sentenced Burke on Monday to two years in prison.
In Madigan’s case, it’s possible defense attorneys will request that certain counts be thrown out in light of the justices’ Wednesday ruling, though prosecutors have said they are willing to forgo any arguments to jurors that the benefits provided to Madigan were gratuities.
Prosecutors also have noted that the 666 statute is charged in only five of the 23 counts in the Madigan 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 unbeknown 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.
Attorneys in the Snyder case participated in lively arguments before the Supreme Court justices back in April, during which 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.
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 were supposed to know where the line was drawn.
“What is innocuous and what is not?” Justice Kavanaugh at one point asked Sinzdak, an assistant to the solicitor general. “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 it’s a politician violating a 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 the word “corruptly” has been defined through other court rulings as “immoral” or “wrongful,” offering a road map that would ward off prosecutions for innocent conduct.
Under questioning by Justice 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 the 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.
