Experts: Brian Benjamin case shows corruption is harder to prove
Former New York Lt. Gov. Brian Benjamin, center, leaves a federal court hearing in Manhattan in April. Credit: AP / Kevin Hagen
ALBANY — A federal judge's decision last week to throw out bribery charges against former Lt. Gov. Brian Benjamin highlights the complexity, and increasing difficulty, of prosecuting corruption cases against public officials after a series of U.S. Supreme Court decisions, according to legal experts.
Federal prosecutors accused Benjamin of bribery for soliciting campaign contributions in 2019 from a real estate developer in exchange for a $50,000 state grant. At the time, Benjamin was a state senator running for New York City comptroller.
But in dismissing the bribery indictment last Monday, U.S. District Judge J. Paul Oetkin said prosecutors failed to meet the “heightened legal standard” for bribery set out in a series of Supreme Court decisions over the past two decades.
“An official act taken in the hope that it will yield campaign contributions is not a bribe; it is a basic aspect of the American political system,” Oetkin, who sits in Manhattan, wrote in an opinion last Monday.
“This is a fine distinction, but an essential one,” Oetkin wrote.
Legal experts said Oetkin’s ruling wasn’t surprising, given the growing body of Supreme Court decisions that have tightened corruption standards.
“The court has changed its stance on this — you do have to see a real quid pro quo,” said Frank Anechiarico, a government and law professor at Hamilton College in upstate Clinton who has written extensively about public corruption.
“It can’t just be the appearance of corruption; it can’t just be an apparent conflict of interest. It has to be a direct quid pro quo,” Anechiarico told Newsday.
Benjamin, who resigned as lieutenant governor when the federal charges against him became public in April, still faces a charge of altering records.
One of the first and most critical high court decisions to narrow the definition of corruption was the landmark ruling in Citizens Union v. the Federal Elections Commission in 2010.
The decision said campaign contributions are a form of free speech protected by the First Amendment.
Oetkin noted a 2014 U.S. Supreme Court decision requiring, as he wrote, “an agreement that is clear and unambiguous and in turn controls the action. It does not permit the action as proof of the agreement.”
He continued: “Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime.”
In another federal case in 2014, the same issue led to the acquittal on bribery charges of former state Senate Majority Leader Joseph Bruno, a Rensselaer County Republican who had been one of the three most powerful leaders in state government for decades.
In a retrial, a jury decided the $360,000 in consulting fees Bruno received from a business owner who later received state grants wasn’t a bribe.
Bruno had argued he wasn’t acting as a state legislator, which was technically a part-time job, but as a paid independent consultant. He said that meant he couldn’t commit government corruption because he wasn’t acting as a government official.
In 2016, the U.S. Supreme Court threw out the corruption conviction of former Virginia Gov. Bob McDonnell.
In a unanimous ruling, justices said although McDonnell’s acceptance of expensive gifts from a business owner was "distasteful," prosecutors had relied on a “boundless” definition of the kinds of acts that could lead to criminal charges against public officials.
In 2020, the high court overturned the convictions of two former New Jersey officials in the “Bridgegate” scandal.
The court found that aides to then-GOP Gov. Chris Christie intentionally closed traffic lanes on the George Washington Bridge to put political pressure on a local official.
But the court said the corruption scheme presented by prosecutors failed to show the aides receiving any money or direct compensation for the act.
The issue of corruption statutes and possible conflicts with the First Amendment is before the Supreme Court again in the case of Joseph Percoco, once former Gov. Andrew M. Cuomo’s top aide and confidant.
Percoco was convicted in 2018 of bribery in what federal prosecutors called a bid-rigging scheme associated with Cuomo’s hallmark Buffalo Billion project.
The project aimed to help revive Buffalo’s long moribund economy by leveraging state funding with investments by private companies that held state contracts.
Percoco at the time was on leave from his state job and was working as a lobbyist for developers seeking state contracts. He argued that because he wasn't working for the state, corruption statutes didn’t apply to him.
Percoco’s appeal to the Supreme Court turns on the definition of permissible influence peddling.
During oral arguments in the case last month, most justices appeared poised to tighten the rules again for public corruption cases as they weighed how to protect private lobbyists seeking to legally influence public officials while also making it illegal for public officials to engage in bribery schemes.
Justice Neil Gorsuch referred to trusted, unpaid outside advisers politicians often use.
“Is there any stopping point? This town is full of such persons and presidents have had kitchen cabinets since the beginning of time,” Gorusch said.
But legal experts and good-government advocates said the court's tightening interpretations of corruption laws could be taking a toll on Americans' confidence in the criminal justice system.
Susan Lerner, executive director of the good-government nonprofit Common Cause-NY, called Judge Oetkin's decision in the Benjamin case, “a black eye to the public’s common sense understanding of corruption.”
Lerner argued in a statement, "With trust in government at record lows, the NYS Legislature and Congress must step in and clarify the bribery statute.”
The distinction between legal and illegal influence peddling has frustrated prosecutors in Albany for decades.
Dick W. Simpson, professor emeritus of political science at the University of Illinois Chicago, told Newsday that U.S. Supreme Court rulings are responsible.
“It’s really the Supreme Court decisions,” said Simpson, who studies the issue of government corruption.
“Politicians sometimes get sloppy and say things on the phone while the other party is wearing a wire, but if they are very careful, they can avoid making a very specific promise on a bill or a property tax reduction," he said.
"They can get away with it because they never did promise Mr. X he would get a specific benefit for a bribe or a campaign contribution,” Simpson said.
There is a gap between the public’s perception of what constitutes corruption and the “real law” under which it must be proved, said Vincent Bonventre, a distinguished professor at Albany Law School and an authority on New York’s legal system.
The recent U.S. Supreme Court decisions require that every element of a charge such as bribery be met, Bonventre told Newsday.
Four out of five, “even if there is just a small doubt on the fifth,” isn’t enough, Bonventre said.
“Every year the Congress and legislatures around the country and states enact new criminal laws. Why? Because they found there is a gap in the law we didn’t cover,” Bonventre said.
“There are volumes and volumes of laws and we still find gaps,” he said.
ALBANY — A federal judge's decision last week to throw out bribery charges against former Lt. Gov. Brian Benjamin highlights the complexity, and increasing difficulty, of prosecuting corruption cases against public officials after a series of U.S. Supreme Court decisions, according to legal experts.
Federal prosecutors accused Benjamin of bribery for soliciting campaign contributions in 2019 from a real estate developer in exchange for a $50,000 state grant. At the time, Benjamin was a state senator running for New York City comptroller.
But in dismissing the bribery indictment last Monday, U.S. District Judge J. Paul Oetkin said prosecutors failed to meet the “heightened legal standard” for bribery set out in a series of Supreme Court decisions over the past two decades.
“An official act taken in the hope that it will yield campaign contributions is not a bribe; it is a basic aspect of the American political system,” Oetkin, who sits in Manhattan, wrote in an opinion last Monday.
WHAT TO KNOW
- A federal judge's decision to throw out bribery charges against former New York Lt. Gov. Brian Benjamin highlights the increasing difficulty in prosecuting corruption cases against public officials.
- In dismissing the bribery indictment, the judge said prosecutors failed to meet the “heightened legal standard” for bribery set out in a series of Supreme Court decisions over the past two decades.
- “It can’t just be the appearance of corruption; it can’t just be an apparent conflict of interest. It has to be a direct quid pro quo,” said a Hamilton College professor who has written extensively about public corruption.
“This is a fine distinction, but an essential one,” Oetkin wrote.
Legal experts said Oetkin’s ruling wasn’t surprising, given the growing body of Supreme Court decisions that have tightened corruption standards.
“The court has changed its stance on this — you do have to see a real quid pro quo,” said Frank Anechiarico, a government and law professor at Hamilton College in upstate Clinton who has written extensively about public corruption.
“It can’t just be the appearance of corruption; it can’t just be an apparent conflict of interest. It has to be a direct quid pro quo,” Anechiarico told Newsday.
Benjamin, who resigned as lieutenant governor when the federal charges against him became public in April, still faces a charge of altering records.
Rulings narrowed corruption standards
One of the first and most critical high court decisions to narrow the definition of corruption was the landmark ruling in Citizens Union v. the Federal Elections Commission in 2010.
The decision said campaign contributions are a form of free speech protected by the First Amendment.
Oetkin noted a 2014 U.S. Supreme Court decision requiring, as he wrote, “an agreement that is clear and unambiguous and in turn controls the action. It does not permit the action as proof of the agreement.”
He continued: “Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime.”
In another federal case in 2014, the same issue led to the acquittal on bribery charges of former state Senate Majority Leader Joseph Bruno, a Rensselaer County Republican who had been one of the three most powerful leaders in state government for decades.
In a retrial, a jury decided the $360,000 in consulting fees Bruno received from a business owner who later received state grants wasn’t a bribe.
Bruno had argued he wasn’t acting as a state legislator, which was technically a part-time job, but as a paid independent consultant. He said that meant he couldn’t commit government corruption because he wasn’t acting as a government official.
In 2016, the U.S. Supreme Court threw out the corruption conviction of former Virginia Gov. Bob McDonnell.
In a unanimous ruling, justices said although McDonnell’s acceptance of expensive gifts from a business owner was "distasteful," prosecutors had relied on a “boundless” definition of the kinds of acts that could lead to criminal charges against public officials.
In 2020, the high court overturned the convictions of two former New Jersey officials in the “Bridgegate” scandal.
The court found that aides to then-GOP Gov. Chris Christie intentionally closed traffic lanes on the George Washington Bridge to put political pressure on a local official.
But the court said the corruption scheme presented by prosecutors failed to show the aides receiving any money or direct compensation for the act.
New standards play out in Percoco case
The issue of corruption statutes and possible conflicts with the First Amendment is before the Supreme Court again in the case of Joseph Percoco, once former Gov. Andrew M. Cuomo’s top aide and confidant.
Percoco was convicted in 2018 of bribery in what federal prosecutors called a bid-rigging scheme associated with Cuomo’s hallmark Buffalo Billion project.
The project aimed to help revive Buffalo’s long moribund economy by leveraging state funding with investments by private companies that held state contracts.
Percoco at the time was on leave from his state job and was working as a lobbyist for developers seeking state contracts. He argued that because he wasn't working for the state, corruption statutes didn’t apply to him.
Percoco’s appeal to the Supreme Court turns on the definition of permissible influence peddling.
During oral arguments in the case last month, most justices appeared poised to tighten the rules again for public corruption cases as they weighed how to protect private lobbyists seeking to legally influence public officials while also making it illegal for public officials to engage in bribery schemes.
Justice Neil Gorsuch referred to trusted, unpaid outside advisers politicians often use.
“Is there any stopping point? This town is full of such persons and presidents have had kitchen cabinets since the beginning of time,” Gorusch said.
Toll on confidence in criminal justice system
But legal experts and good-government advocates said the court's tightening interpretations of corruption laws could be taking a toll on Americans' confidence in the criminal justice system.
Susan Lerner, executive director of the good-government nonprofit Common Cause-NY, called Judge Oetkin's decision in the Benjamin case, “a black eye to the public’s common sense understanding of corruption.”
Lerner argued in a statement, "With trust in government at record lows, the NYS Legislature and Congress must step in and clarify the bribery statute.”
The distinction between legal and illegal influence peddling has frustrated prosecutors in Albany for decades.
Dick W. Simpson, professor emeritus of political science at the University of Illinois Chicago, told Newsday that U.S. Supreme Court rulings are responsible.
“It’s really the Supreme Court decisions,” said Simpson, who studies the issue of government corruption.
“Politicians sometimes get sloppy and say things on the phone while the other party is wearing a wire, but if they are very careful, they can avoid making a very specific promise on a bill or a property tax reduction," he said.
"They can get away with it because they never did promise Mr. X he would get a specific benefit for a bribe or a campaign contribution,” Simpson said.
There is a gap between the public’s perception of what constitutes corruption and the “real law” under which it must be proved, said Vincent Bonventre, a distinguished professor at Albany Law School and an authority on New York’s legal system.
The recent U.S. Supreme Court decisions require that every element of a charge such as bribery be met, Bonventre told Newsday.
Four out of five, “even if there is just a small doubt on the fifth,” isn’t enough, Bonventre said.
“Every year the Congress and legislatures around the country and states enact new criminal laws. Why? Because they found there is a gap in the law we didn’t cover,” Bonventre said.
“There are volumes and volumes of laws and we still find gaps,” he said.
Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.