* Crain’s in April…

Questioned by Assistant U.S. Attorney Sarah Streicker, [former ComEd CEO Anne Pramaggiore] was asked about when she met with the FBI and government lawyers in September 2019. In that meeting — a “proffer” session in which she promised to tell the truth in return for not having any evidence she presented used against her — Pramaggiore told the feds she didn’t remember anything about the Doherty arrangements. She then was played the intercepted call from February 2019 between her and Fidel Marquez, ComEd’s senior internal lobbyist, in which he told her about Doherty’s no-work subcontracts.

The meeting with the feds, attended also by Pramaggiore attorney Scott Lassar, himself a former U.S. attorney for Illinois’ Northern District, then ended, apparently abruptly. After a sidebar in which lawyers for each side jostled about whether and how that meeting with the feds would be discussed, Pramaggiore testified, “It was the end of the day, yes. The interview was over.”

“You and your counsel ended the interview, correct?” Streicker asked.

Lassar immediately objected and said she’d violated the judge’s instructions. U.S. District Judge Harry Leinenweber directed the jury to disregard that question.

But the seed had been planted — Lassar apparently thought the call when it was played was damaging enough that he ended Pramaggiore’s session with the feds before they were done with her.

From Pramaggiore’s newly filed appeal…

Introducing this irrelevant and untrue evidence gave a powerful impression of guilt before the jury. There can be little question that “there is a reasonable possibility” that the Government’s improper question “had a prejudicial effect upon the jury’s verdict.”

Wait. It was untrue? Back to the appeal…

During the course of the interview, counsel for Ms. Pramaggiore took typed, transcript-style notes, including both questions and answers, totaling approximately 60 pages. The FBI agent taking notes on behalf of the Government was writing notes in longhand. The transcript-style notes taken by counsel for Ms. Pramaggiore reflect that, after Mr. Lassar asked to speak to Ms. Pramaggiore about a particular recorded conversation, Mr. Bhachu said substantially in words and effect that “it doesn’t do us much good for us to play recordings that you will keep saying you don’t remember.” After a break during which Ms. Pramaggiore spoke with counsel, Mr. Lassar told [Assistant U.S. Attorney Amarjeet Bhachu] that he needed time to discuss the recording with his client, Mr. Bhachu said substantially in words and effect that “I think that’s best. . . . I would encourage you to take this time to think through that. We’re done here today.” This statement demonstrates that Ms. Pramaggiore did not unilaterally end the interview.

* Crain’s today…

Former Commonwealth Edison CEO Anne Pramaggiore, one of the four appealing the jury convictions from early May, laid out a wide array of arguments in a 77-page appeal, filed Friday with U.S. District Judge Harry Leinenweber. They include assertions that Leinenweber’s jury instructions weren’t in line with precedents on such public-corruption cases, as well as claims that some of the actions on which Pramaggiore was convicted of bribery weren’t any different than other executives at ComEd or parent Exelon, including Exelon CEO Chris Crane, who weren’t charged in the scheme. […]

[The appeal] also says the judge improperly excluded evidence Pramaggiore wanted to present in her defense. That included a series of emails in June 2012, more than a year after the scheme allegedly began, Pramaggiore sent to others within the company requesting an investigation of ComEd’s lobbyists and their activities. In one such email, included in the brief, Pramaggiore wrote, “I want to make sure we have done everything we can (including a broader investigation if need be) to insure we have protected the company against exposure to public embarrassment or worse.”

“If Ms. Pramaggiore had the corrupt intent to bribe Mr. Madigan by paying (associates) Mr. Olivo and Mr. Nice, who were in fact being paid at that time, or if she were in a conspiracy to bribe Mr. Madigan, she would never have suggested that non-conspirators such as Mr. O’Neill and (Exelon General Counsel Darryl) Bradford be involved in an investigation into the activities of ComEd lobbyists,” the brief states.

* Back to the appeal…

Anne Pramaggiore was convicted of nine felonies for conduct that violates no law and is commonplace in American society—accepting job recommendations from public officials without any expectation that the public official will do anything in return. If what
Ms. Pramaggiore did was bribery, any executive who has accepted a job recommendation from a public official has paid a bribe. Any public official who has made a job recommendation has committed bribery. And any judge who has recommended a clerk to a law firm with cases before the court has solicited a bribe.

How is it possible that such unremarkable conduct is punishable as criminal bribery? Were the bribery statutes amended to become strict-liability crimes stating that no one with business before a public official is ever permitted to give any thing of value to him? Did the Supreme Court overturn decades-old precedent holding that convicting someone of bribery requires proof of a quid pro quo and that providing things of value to public officials to foster goodwill is legal? […]

[Prosecutors] asked the jury to convict Ms. Pramaggiore for conduct that is unquestionably legal by saying repeatedly that she should be convicted of a crime if she was motivated by a desire to keep Mr. Madigan happy, despite knowing that the Supreme Court has held that it is not illegal to give things of value to a public official to build a reservoir of goodwill. The Government knew that it could not convict her of conduct that is illegal, so it repeatedly asked the jury to convict her of conduct that violates no law.

* Steve Daniels also pointed to this passage in his excellent write-up of the appeal…

Ms. Pramaggiore’s conviction on Count Five illustrates well the dangerous breadth of allowing the prosecution to obtain a conviction of bribery without proving a quid pro quo. She was convicted of bribery for acting on Michael Madigan’s recommendation that Juan Ochoa be appointed to ComEd’s board. All the evidence showed that she expected that Mr. Ochoa would add value and do the work expected of board members, and the proof at trial confirmed that she was correct. Mr. Ochoa was highly qualified and did the work required. She acted with full transparency, sharing the fact that Mr. Ochoa was recommended by Mr. Madigan with Exelon’s General Counsel Tom O’Neill (an experienced white collar defense attorney), Exelon’s Chief Legal Officer Bill Von Hoene (another experienced white collar defense attorney), her successor Joe Dominguez (a former prosecutor), and the ultimate decision-maker, Exelon CEO Chris Crane, none of whom raised a concern that ComEd would be bribing Mr. Madigan by appointing Mr. Ochoa. She never expected that Mr. Madigan would do anything for ComEd in return for Mr. Ochoa’s appointment, never asked him for anything in connection with Mr. Ochoa’s appointment, and never learned that anyone else asked him for anything in connection with Mr. Ochoa’s appointment. And there is no evidence that Mr. Madigan took any unusual action following Mr. Ochoa’s appointment to benefit ComEd from which a tacit agreement could be implied—instead, the evidence showed that Mr. Madigan refused ComEd’s request to allow a vote on a bill it wanted at around the same time that Mr. Ochoa was appointed to the ComEd board.

* More from the appeal…

This case illustrates well the wisdom of the Supreme Court’s repeated admonition that federal prosecutors must not be permitted to stretch federal laws to enforce their own views of integrity in state and local affairs. … Here, it is absurd to think that the politicians serving in Congress, many of whom previously served in state and local government, intended by enacting 18 U.S.C. § 666 to make it per se criminal for state or local officials to make job recommendations or for individuals with business before the officials to accept those recommendations. Had that been Congress’s intent, it could have enacted a much clearer and simpler statute.

* And…

Even if the Court somehow finds that no quid pro quo need be proved to convict someone of bribery, it should acquit Ms. Pramaggiore because the Government failed to offer evidence that Ms. Pramaggiore acted with a corrupt intent, that is, with knowledge that giving the thing of value was forbidden. Instead of showing that Ms. Pramaggiore knew that her conduct was forbidden by law, the evidence clearly demonstrated that many others who were not allegedly members of the conspiracy agreed to accept job recommendations from Mr. Madigan, including attorneys experienced in criminal law such as Messrs. O’Neill, Von Hoene, and Dominguez, none of whom ever raised a concern that they were bribing Mr. Madigan. If they did not think that what they were doing was illegal, there is no reason to think that Ms. Pramaggiore had the requisite knowledge. Indeed, the fact that they all personally participated in these actions without raising a concern demonstrates that the theory the Government pursued at trial does not provide “sufficient definiteness that ordinary people can understand what conduct is prohibited” and is susceptible to “arbitrary and discriminatory enforcement,” demonstrating its infirmity under binding Supreme Court precedent.

* Regarding the ghost payrollers, the appeal claims the government never proved that she knew about their connection to Madigan…

[Star prosecution witness Fidel Marquez’s] inability to testify that Ms. Pramaggiore knew that Messrs. Nice, Olivo, Moody, or Acevedo were recommended by Mr. Madigan is particularly glaring in light of the fact that the Government met with him over 50 times, including no fewer than 14 times in 2023 prior to trial, interviewing him over and over and over again to ensure that his testimony would be as favorable to the Government’s case as possible. Yet he did not say under oath that Ms. Pramaggiore knew this basic fact because he could not without perjuring himself. Mr. Marquez is the only witness who purported to connect Ms. Pramaggiore to these subcontractors, and his inability to testify that she knew they were connected to Mr. Madigan shows the failure of proof on this essential point.

Discuss.