In the decade and change I’ve been writing for the Daily News about public corruption in New York City, the Supreme Court keeps raising the legal bar for what it takes to nail local officials on federal charges.
That’s played out to the benefit of supposed public servants cashing in while testing the law’s limits, and goes a long way to explaining collapsing confidence in elected leaders and judges.
The high court is legalizing more and more nakedly corrupt behavior while offering a tip to pols on how to keep it legal: Just don’t collect cash beforehand while explicitly committing to using your public office on behalf of the person paying you.
That’s the upshot to the high court’s decision Thursday that it’s not a federal crime for local officials to accept “gratuities” for their public actions, despite the plain and previously uncontested language of the statute in question — which happens to be § 666 of the criminal code, and make of that what you will.
The majority opinion, written by Justice Brett Kavanaugh on behalf of the court’s six increasingly aggressive conservatives, briefly states the obvious: that “bribes can corrupt the official act — meaning that the official takes the act for private gain, not for the public good.”
But things get weird, fast, after that in a ruling involving a small-town Indiana mayor previously convicted of manipulating a contract process to ensure a local truck dealership would win a deal to sell the city more than a million dollars worth of garbage trucks with the business paying him $13,000 the following year for “consulting services.”
Kavanaugh wrote that the straightforward anti-bribery law the mayor had been convicted under had supposedly been “subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities,” while arguing that paying off a local official after they’ve delivered for you is somehow less corrupting than doing so beforehand.
The reasoning is so crude and convoluted it’s worth quoting at some length:
As a general matter, bribes are payments made or agreed to before an official act in order to influence the official with respect to that future official act. American law generally treats bribes as inherently corrupt and unlawful.
But the law’s treatment of gratuities is more nuanced. Gratuities are typically payments made to an official after an official act as a token of appreciation. Some gratuities can be problematic. Others are commonplace and might be innocuous. A family gives a holiday tip to the mail carrier. Parents send an end-of-year gift basket to their child’s public school teacher. A college dean gives a college sweatshirt to a city council member who comes to speak at an event. A state legislator’s neighbor drops off a bottle of wine to congratulate her for her work on a new law.
As those examples suggest, gratuities after the official act are not the same as bribes before the official act. After all, unlike gratuities, bribes can corrupt the official act — meaning that the official takes the act for private gain, not for the public good.
Notably, his examples of “gratuities” here don’t include $13,000 consulting payments from a company an official just steered a contract to worth nearly 100 times that amount.
The whole argument is through-the-looking-glass logic, or an AI showtune: “Get Your Tips from Law §666”
In a blistering dissent that’s considerably more coherent than the argument it’s critiquing, Justice Ketanji Brown Jackson, writing on behalf of the court’s three liberals, rips into the majority’s “absurd” reasoning.
She opens with the bottom line: “Officials who use their public positions for private gain threaten the integrity of our most important institutions. Greed makes governments — at every level — less responsive, less efficient, and less trustworthy from the perspective of the communities they serve.”
That’s anything but abstract. The Supremes increasingly radical reasoning is why they overturned the Bridgegate convictions of former New Jersey Gov. Chris Christie’s flunkies and the bid-rigging and fraud convictions of former New York Gov. Andrew Cuomo’s former flunkies.
It’s governance to the tune of Anything Goes, and New Yorkers — waiting once again to see what happens with multiple law enforcement investigations apparently targeting our mayor — are getting tired of dancing to that tune on a loop.
The silver lining, in theory, in the majority’s decision is that it “leaves it to state and local governments to regulate gratuities to state and local officials.”
One more tip, for anyone who thinks New York’s political class is going to honestly and effectively police itself: I’ve got a great deal for you on a bridge in Brooklyn.
Siegel ([email protected]) is an editor at The City, a host of the FAQ NYC podcast and a columnist for the Daily News.
