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* More background is here if you need it. From a January Tribune story on Snyder v. United States…
In court last month, Scott Lassar, an attorney for ex-ComEd CEO Anne Pramaggiore, said the ComEd Four cases will likely see major upheaval, arguing that jurors were allowed to find her and her co-defendants guilty without evidence of a quid pro quo.
“It is all but certain that there is at least going to be a retrial, if not an acquittal, for the defendants,” Lassar said.
But Assistant U.S. Attorney Amarjeet Bhachu, who is spearheading the Madigan and ComEd prosecutions, suggested defense attorneys were prematurely spiking the football.
“I wish somebody would just read the language of the statute,” Bhachu told U.S. District Judge Harry Leinenweber last week.
In a written motion Friday, Bhachu went even further, calling the effort to delay the sentencings another signal that the defendants are “unrepentant” and trying to shift blame.
* From that written motion…
On the subject of quid pro quo, the defendants have repeatedly said that proof of a quid pro quo is required under § 666. But in doing so, counsel for McClain has described the term quid pro quo as being the equivalent of requiring proof of an agreement between two parties concerning the corrupt exchange of benefits for action, and counsel for Pramaggiore has also suggested that proof of an “agreement” is required.
This is incorrect; this misunderstanding is a result of casual and imprecise use of Latin jargon, namely, the phrase “quid pro quo,” to mask what is really required by the plain English of § 666. While proof of such a meeting of the minds is sufficient to violate the statute, no proof of an “agreement” is required under either prong of § 666. The language of the statute—which defendants ignore—not only punishes those who “agree to accept” and “agree to give,” but also anyone who “solicits” intending to be influenced or rewarded and anyone who “offers” with intent to influence or reward —without regard to whether any mutual understanding is reached with the counterparty.
* From the Seventh Circuit’s ruling in Snyder v. United States…
A bribe requires a quid pro quo—an agreement to exchange this for that, to exchange money or something else of value for influence in the future. A gratuity is paid “as a reward for actions the payee has already taken or is already committed to take.” United States v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997). Snyder insists that the evidence does not support a finding that he and the Buhas agreed to exchange money for the truck contracts before they were awarded. Without a prior quid pro quo agreement, he argues, § 666 cannot apply. […]
Accordingly, we follow here our precedents holding that 18 U.S.C. § 666 applies to gratuities and does not require evidence of a prior quid pro quo agreement.
* From US Supreme Court Justice Brett Kavanaugh’s conclusion in Snyder v. United States…
In sum, §666 tracks §201(b), the bribery provision for federal officials. A state or local official can violate §666 when he accepts an up-front payment for a future official act or agrees to a future reward for a future official act. See United States v. Fernandez, 722 F. 3d 1, 23 (CA1 2013) (the word “reward” “clarifies that a bribe can be promised before, but paid after, the official’s action” (quotation marks omitted)).
But a state or local official does not violate §666 if the official has taken the official act before any reward is agreed to, much less given. Although a gratuity offered and accepted after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate §666.
* From Justice Ketanji Brown Jackson’s dissent…
(F)or a payment to constitute a bribe, there must be an up-front agreement to exchange the payment for taking an official action.
Legislatures have also considered it similarly wrongful for government officials to accept gratuities under certain circumstances, but unlike bribes, gratuities do not have a quid pro quo requirement. Generally speaking, rather than an actual agreement to take payment as the impetus for engaging in an official act (a quid pro quo exchange), gratuities “may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.”
We took this case to resolve “[w]hether section 666 criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions.” The majority today answers no, when the answer to that question should be an unequivocal yes.
…Adding… Looks that way…
From that story…
Pramaggiore’s attoney, Scott Lassar, said the Supreme Court ruling makes clear that “what Anne Pramaggiore was charged with is not a crime.”
“I don’t think the entire case would be dismissed,” Lassar said. “But we will argue — I think successfully — that all of the convictions have to be reversed. And so, if that’s the case, the government would have to make a choice about whether they want to retry the case.”
Patrick Cotter, McClain’s attorney, said he believes the ruling “does radically change what the U.S. attorney’s office for the Northern District of Illinois can argue is a crime.” […]
Madigan’s lawyers have noted that seven of the 23 counts he faces in his indictment are tied to the law in question.
posted by Rich Miller
Wednesday, Jun 26, 24 @ 12:05 pm
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Democrats will somehow be blamed if/when MJM skates because of this ruling
Comment by Macon Bakin Wednesday, Jun 26, 24 @ 12:11 pm
Gratuities are bound to become a mess
Comment by Socially DIstant watcher Wednesday, Jun 26, 24 @ 12:16 pm
I am no lawyer or expert… But this ruling sort of makes sense to me? I don’t know. I get how it could leave the door open for some malfeasance though.
Hoping someone smarter than me on this can explain why it’s bad news (or if my hunch is correct)?
Comment by batman Wednesday, Jun 26, 24 @ 12:16 pm
Show of hands, how many people are really surprised that this iteration of the Supreme Court is okay with public officials having an easier time getting “gifts” from interested parties? Anyone? Bueller?
Comment by TJ Wednesday, Jun 26, 24 @ 12:17 pm
===this iteration of the Supreme Court is okay with===
I mean, you ain’t wrong, but there were distinct splits in the circuits on this topic. So they’re not alone.
Comment by Rich Miller Wednesday, Jun 26, 24 @ 12:19 pm
== I mean, you ain’t wrong, but there were distinct splits in the circuits on this topic. So they’re not alone. ==
Sure, but we’re still talking about this era of the judiciary in general in that case.
Comment by TJ Wednesday, Jun 26, 24 @ 12:20 pm
Snyder notwithstanding, it seems to me that ComEd intended to provide benefits for Madigan and his people in an effort to influence his power over their legislation. Marquez offered evidence that McClain and he understood the arrangement. There was also evidence presented that Prammagiore understood the arrangement.
They may get a new trial, but I don’t think they escape conviction under a narrower definition of the statute. But that’s just my opinion.
Has anyone told Mapes about this yet?
Comment by 47th Ward Wednesday, Jun 26, 24 @ 12:23 pm
I spent my grad school tuition studying other topics but my undergrad prelaw education tells me that there are some distinct differences in the ComEd and Snyder v. US cases. Unlike in Snyder that is a gratuity after the awarding of a government contract, ComEd is a utility that frequently requires actions by the legislature. So, does a gratuity for one previous action become a bribe for an expected future action? I would think that the car dealer in Snyder would be found as providing a bribe if they were awarded a second contract by the same government official after paying out the gratuity. Right?
Comment by CLJ Wednesday, Jun 26, 24 @ 12:28 pm
There was a lot of evidence this was a quid pro quo. It seems like you can still bribe someone by conferring benefits on another person. Lots of chatty fellas in this group.
Comment by Three Dimensional Checkers Wednesday, Jun 26, 24 @ 12:31 pm
==Democrats will somehow be blamed if/when MJM skates because of this ruling==
Correct. The MAGA crowd will blame Biden and the “Democrst” Party when it reality it was their own majority on the Supreme Court. That is the part Niemerg, Halbrook and the crew will leave out.
Comment by low level Wednesday, Jun 26, 24 @ 12:33 pm
It’s funny how as much as the Trump crowd wines about Democrats rigging the courts against Republicans, we repeatedly see Republicans going out of their way to let corrupt Dems off the hook.
Comment by Arsenal Wednesday, Jun 26, 24 @ 12:38 pm
What’s the issue? Clarence Thomas accepts tokens of appreciation all the time.
Comment by Blue to the Bone Wednesday, Jun 26, 24 @ 12:39 pm
As far as I can tell, the only difference between cash-in-pocket corruption and a cash-in-pocket gratuity is whether the legal system is required to act as if it were born yesterday. It’s a very solipsistic distinction without a difference.
But here we are, so everyone please tip your legislators.
Comment by vern Wednesday, Jun 26, 24 @ 12:43 pm
Im not an attorney and I certainly dont play one on TV, but it seems to me the hiring of Acevedo and the other no show contract hires remains problematic for Madigan. Later in there was favorable legislation passed for AT&T and ComEd.
If they could only show they did any substantive work, they would be fine but they cant. Moody’s testimony was he told Madigan he wasnt doing any work and Madigan told him his political work was what counted. Thats not good.
Comment by low level Wednesday, Jun 26, 24 @ 12:53 pm
SCOTUS: Don’t forget to 1) postdate your bribery checks, and 2) write “gratuity” on the memo line.
– MrJM
Comment by @misterjayem Wednesday, Jun 26, 24 @ 12:57 pm
In his historic tenure built upon dismantling Congressional and Executive regulations, CJ Roberts has been very consistent. He seems to think without federal regulation, and with corporations granted equal status with citizens/individuals, the best is yet to come.
Nice theory. But in his tenure his theory has led to demonstrable growth in all forms of inequality. Corporations and the wealthy are the only beneficiaries of such deregulation. Citizens gain nothing.
What makes the Roberts Court historically interesting, is that his court exists in the existence of an incompetent Congress. The US Supreme Court is rewriting law, with they ironic blessing of a dysfunctional Congress. And the Executive Branch suffers most, while criminals, the corrupt and the wealthy become more free than the People.
Sad times, but like Wynonna Judd said, “when you hit rock bottom you’ve got two ways to go - straight up, or sideways.” Hoping for the former, and soon.
Comment by H-W Wednesday, Jun 26, 24 @ 12:57 pm
never bet against the speaker
Comment by sox11 Wednesday, Jun 26, 24 @ 12:57 pm
As a lifelong reform advocate who grew up believing that neither judges, justices or legislators should create the appearance of impropriety by accepting gifts, I’m living in a personal nightmare as $4 million in gifts to a justice and bribes to legislators by another name are now ok.
In the case of both the ComEd 4 and Madigan, I’m actually confident they’ll still be convicted and do time, but this is not helping a place like Illinois clean up our act.
Comment by New Day Wednesday, Jun 26, 24 @ 12:58 pm
- Has anyone told Mapes about this yet? -
It would almost be worth it if everyone else walked.
But I agree with others that there is plenty of evidence of a quid pro quo.
Comment by Excitable Boy Wednesday, Jun 26, 24 @ 12:58 pm
Rich -
But if there were circuit splits on this issue to resolve, weren’t those circuit splits the result of the circuit courts grappling with how the Supreme Court under John Roberts had already whittled away at the anti-bribery statute in prior rulings?
There is a pro-corruption ethos in the Roberts court that thinks that politically connected rich guys and corporations should be allowed to buy government action and political outcomes with impunity and they are willing to strike down just about any campaign finance law or anti-bribery statute that gets in the way of that.
Not to toot my own horn too much but this Supreme Court threat to the Madigan and ComEd prosecutions was evident to me all the way back in July 2020 because of the prior Skilling and McDonnell rulings.
https://capitolfax.com/2020/07/20/can-madigan-make-it-through-again/
Comment by Hisgirlfriday Wednesday, Jun 26, 24 @ 1:03 pm
@HisGirlFriday
=== this Supreme Court threat to the Madigan and ComEd prosecutions was evident ===
But only to those who follow the US Supreme Court over time (as you do).
I would go one step further to suggest if Madigan and ComEd are found guilty, these two cases represent fodder for CJ Roberts to use to further deregulate. If so, then Madigan will never actually serve time (appeals will last a long time).
Comment by H-W Wednesday, Jun 26, 24 @ 1:15 pm
=Clarence Thomas accepts tokens of appreciation all the time.=
But what if they are “friends”? Can’t friends give friends nice gifts worth tens of thousands of dollars? /s
Comment by JS Mill Wednesday, Jun 26, 24 @ 1:32 pm
And with that opinion…corruption just got a lot stronger
Power and the money. Money and the power. Minute after minute. Hour after hour.
Comment by Blazzzer Wednesday, Jun 26, 24 @ 1:38 pm
Comments are intriguing, but raise other questions
A. Does ComEd get to withdraw the “guilty” plea?
B. Do ratepayers get their $300 million back?
C. Can Fidel withdraw his “guilty” plea too?
Comment by Annonin' Wednesday, Jun 26, 24 @ 2:02 pm
“They may get a new trial, but I don’t think they escape conviction under a narrower definition of the statute. But that’s just my opinion.”
Go look at Meisner’s timeline. They fought over this very topic with respect to the jury instruction and the AUSA conceded if the court ruled the way it did it would change the scope of the prosecution.
Comment by Room Reader Wednesday, Jun 26, 24 @ 2:08 pm
===Go look at Meisner’s timeline===
Comment by Rich Miller Wednesday, Jun 26, 24 @ 2:17 pm
=== C. Can Fidel withdraw his “guilty” plea too? ===
A. It is always proper to use explicit names (e.g., Madigan).
B. Even if not, the grounds for appeal and the process of appeal could likely last for the rest of his life. Same strategy as Trump, right? “Keep it in the courts.”
Comment by H-W Wednesday, Jun 26, 24 @ 2:30 pm
So, the difference between a gratuity and a bribe is timing…got it…with a time stamp.
The study of bribery law seems to be paying off.
Comment by Dotnonymous x Wednesday, Jun 26, 24 @ 2:31 pm
If these charges are dropped and the conviction vacated, it does not preclude filing of new charges along the same lines, but narrower in scope.
However it gets parsed, ComEd appeared to have an agreement to bribe Madigan by rewarding him and his people with tangible benefits. They did this to gain his support of (or avoid his opposition to) their legislative agenda. They provided benefits before he acted and after he acted.
McClain is the key, as he acted as Madigan’s representative to ComEd and as ComEd’s representative to Madigan. There was evidence shown at the first trial of an understanding, if not an agreement.
How is that not bribery and conspiracy under the (now narrower) 666? If you must have smoking gun proof that “I will give you X in exchange for Y,” this creates an absurd standard.
But if it’s all moot now, at least it has been publicly exposed and all the players have been disgraced and forced to leave the stage. That’s enough for me, but I wonder what the consequences of this will be in Illinois in the future.
Comment by 47th Ward Wednesday, Jun 26, 24 @ 2:44 pm
Is a direct quid pro quo necessary for a conviction and what exactly qualifies as a direct quid pro quo? I’m not sure the court provided a clear answer to those questions, despite the disagreement among appellate courts about where to draw the line since the McDonnell decision.
As Rich posted above, Justice Jackson explicitly took on the quid pro quo question in her dissent — she explained what she thinks the majority means. But it’s not what Justice Kavanaugh explicitly wrote. Seems like there’s still some ambiguity.
Comment by T.N. Wednesday, Jun 26, 24 @ 3:00 pm
The man recommended folks for jobs. I don’t hear anything about him stealing money. When did that become illegal?
Comment by hmmm Wednesday, Jun 26, 24 @ 3:00 pm
“The man recommended folks for jobs. *** When did that become illegal?”
Section 720 ILCS 5/33-8(a) - “A member of the General Assembly commits legislative misconduct when he or she knowingly accepts or receives, directly or indirectly, any money or other valuable thing, from any corporation, company or person, for any vote or influence he or she may give or withhold on any bill, resolution or appropriation, or for any other official act.”
– MrJM
Comment by @misterjayem Wednesday, Jun 26, 24 @ 3:23 pm
@MrJM
Justice Kavanaugh would say that you are referencing the violation of a state law that can be prosecuted in the state’s criminal court system by a state prosecutor — not in federal court by a federal prosecutor under 666.
Comment by T.N. Wednesday, Jun 26, 24 @ 4:28 pm
The question wasn’t “When did this become a federal crime?” and the man referenced in the question is Michael J. Madigan, so the correct answer is 720 ILCS 5/33-8(a).
– MrJM
Comment by @misterjayem Wednesday, Jun 26, 24 @ 4:37 pm
I think the prosecution offered enough circumstantial evidence to prove a quid pro quo existed. I think what I saw and heard from the trial leads me to believe the prosecution has a better than 50-50 chance that a jury agrees that there was indeed a quid pro quo here.
I don’t understand the distinction between what Kavanaugh calls “gratuity” versus what I would call bribery. If it is the timing, that gratuities come after the official act and bribes come first, then I still think the prosecution can demonstrate this meets the statutory definition of bribery.
This for that. Over a period of years, via several intermediaries all connected to the official, who benefitted from the scheme, as did ComEd.
Snyder caught a break with this ruling. I’m not sure the ComEd 4 will be as lucky next time. And I am certain the public was not served well by this ruling.
As if 19 million state and local officials is now some sort of protected class under federal law. Pathetic. They are elected to serve the public, not themselves. That should be black letter law, and this court just muddied it up.
Comment by 47th Ward Wednesday, Jun 26, 24 @ 4:39 pm
There’s an old saying…..”Never bet against the Speaker.”
Comment by Ryder Wednesday, Jun 26, 24 @ 4:47 pm
Who had the Number of the Beast in a Supreme Court case regarding corruption on their 2024 bingo card?
Comment by Proud Papa Bear Wednesday, Jun 26, 24 @ 5:35 pm