If you want to see the dire state of American anti-corruption efforts, look no further than the Supreme Court’s docket. No fewer than three state and local officials are begging the justices to overturn their criminal convictions for various corruption-related offenses. Joining some of their pleas are three public-corruption defendants who had their cases tossed by the justices as well.
At issue here is whether otherwise lawful campaign donations to a candidate can amount to quid pro quo bribery. Prosecutors and juries in these cases answered that question in the affirmative, as did the Sixth Circuit Court of Appeals. But the Supreme Court may opt to use one or all of the cases to further bulldoze the government’s ability to police corruption among public officials.
All three of the active petitioners are Ohio officials—two of whom were participants in the Ohio nuclear bribery scandal a few years ago, and one who was convicted of more pedestrian corruption charges. We’ll start with the boring one since it is more helpfully illustrative of the unsavory dynamic that these officials want to protect.
Prior to his legal troubles, P.G. Sittenfeld served on the Cincinnati City Council in the late 2010s and hoped to run for mayor. In September 2018, according to court records, he told local real-estate developer—and, unbeknownst to Sittenfeld, FBI informant—Chinedum Ndukwe that he wanted a $10,000 campaign donation. “The majority of developers in Cincinnati,” he told Ndukwe at one point, “[are] going to be giving [me] ten grand.”
In further conversations, Sittenfeld appeared to suggest that his support for a redevelopment project would be tied to campaign contributions from Ndukwe and his allies. The FBI recorded the conversation and it later became part of the criminal charges against him. The most relevant portion is below (emphasis mine):
Sittenfeld: Just so, just so you know like, look I have, you know I, I love what you do as someone revitalizing our city creating jobs. I am fond of you as a friend. I also have like you know obligations to do the things I need to do to be a successful candidate so.
Ndukwe: Absolutely.
Sittenfeld: So, but what that means is I don’t really get like, if if you say look I don’t want to support you in the name of Chinedum Ndukwe, but some guy I’ve never met from Columbus is going to use a coup, you know, you know [your] network are going to a, round up a bunch of LLC checks. Like that’s great. I actually don’t care. But I mean the one thing I will say is like, you know I mean, you don’t want me to like be like ‘hey Chin like love you but can’t’ you know like, you know, I mean like, you know like. I, I, I want people to support me, that’s like …
Ndukwe: Absolutely.
Sittenfeld: … if a candidate doesn’t want people to support them, they’re a shitty dumb candidate …
Ndukwe: Yeah, right, yeah, right.
Sittenfeld: … and you know I’ve been [unintelligible] a lot of people have come through in a really big way that’s been awesome so far and I would love, I would love for you to be one of those people too.
Note how cagey and indirect Sittenfeld became at this point. Prosecutors interpreted the “hey Chin, like, love you but can’t” statement to mean that if Ndukwe did not provide the requisite donations from himself and his associates, he would be unable to get Sittenfeld’s support on the city council on future redevelopment projects. Ndukwe himself testified at trial that he thought it “was very clear that if I donated, he was going to support and be supportive in my efforts, and if I didn’t, he wasn’t going to be supportive.”
In a later conversation, Ndukwe pressed Sittenfeld on his support for a redevelopment project known as 435 Elm, saying that he and his allies wanted to know that “it’s gonna be a yes vote, you know, without, without a doubt.” Sittenfeld’s answer was open to interpretation. “I mean, obv—as you know, obviously nothing can be illegal, like—illegally nothing can be a quid, quid pro quo,” he replied. “And I know that’s not what you’re saying either. But what I can say is that I’m always super pro-development and revitalization of especially our urban core.”
Based on these conversations, as well as other ones where Sittenfeld’s support was discussed alongside the logistics of donating tens of thousands of dollars to his political action committee, a federal grand jury indicted Sittenfeld on multiple counts of bribery, honest-services wire fraud, and extortion in 2020. After a 2022 trial, jurors convicted Sittenfeld on one count of bribery and one count of extortion while acquitting him on the other charges.
Sittenfeld appealed the verdict, arguing (as relevant here) that the government had presented insufficient evidence to the jury to support its finding of an explicit quid pro quo. In the 1991 case McCormick v. United States, the Supreme Court had concluded that, to support a federal bribery conviction involving campaign donations, prosecutors must prove that there was an “explicit promise or undertaking by the official to perform or not to perform an official act.”
The McCormick ruling sought to harmonize the structural demands of an electoral system where legislators must solicit campaign funds with the legitimate government interest in stamping out public corruption. By requiring an explicit quid pro quo, the court said that it sought to lower the risk that providing legitimate constituent services to campaign donors would become a criminally prosecutable act.
Lower courts had split on how stringent they should be on proving an explicit quid pro quo after McCormick, prompting the justices to clarify matters in the 1992 case Evans v. United States. A public official could violate the law through “passive acceptance” of some kind of benefit, so long as they knew it was being offered “in exchange for a specific requested exercise of his official power.” Justice Anthony Kennedy, writing in concurrence, explained more simply that the two sides “need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.” (Or, in Sittenfeld’s case, by simply saying it isn’t a quid pro quo out loud.)
Sittenfeld argued that McCormick and Evans required the quid pro quo to be as explicit as possible. The Sixth Circuit Court of Appeals disagreed. Federal prosecutors “must prove a meeting of the minds between the parties and that the agreement must be unambiguous from their perspective,” the court explained. “But the [existence] of that agreement is governed by the reasonable doubt standard and can be proved with circumstantial evidence.”
Turning next to the Supreme Court, Sittenfeld argued in his petition for review that the Sixth Circuit’s interpretation would lead to all sorts of abuses and woes for the nation’s elected officials. He invoked his own denial of a quid pro quo exchange in the recordings of his conversations with Ndukwe as evidence of his lack of guilt. Sittenfeld also played into the Supreme Court’s perception of the inherent corruption of electoral politics. He noted that politicians at the state and federal level “surely make even more targeted promises when talking one-on-one to supports,” even while actively soliciting campaign contributions.
“Under the approach adopted below, all of these politicians are open to prosecution if they say anything during these often informal, unscripted conversations that can be read to even hint at a possible quid pro quo, no matter how ambiguous the statement or how vehemently the politician disclaims any intent to enter a quid pro quo agreement,” Sittenfeld warned. (Emphasis his.)
Right about here is normally where I would describe the Justice Department’s counterargument to these claims. This time, however, there isn’t really one. President Donald Trump pardoned Sittenfeld last May. Sittenfeld nonetheless pursued the appeal because the government has not refunded him his $40,000 fine upon conviction—and, perhaps more importantly, because he wants the high court to vacate the Sixth Circuit ruling that ties he and his fellow politicians’ hands when soliciting campaign contributions. The Justice Department is quibbling with him on the former but agrees with the latter.
Overturning the Sixth Circuit’s decision is necessary to save public officials from the overzealous pursuits of federal prosecutors. “Even the most cautious politician is unlikely to be safe under this regime, because juries are all too willing to infer corruption from routine political activity,” Sittenfeld warned, referring to the Sixth Circuit’s interpretation of the law and not using “regime” in the more pejorative sense.
Sittenfeld pointed to a 2016 study where researchers told a “large, nationally representative sample of mock jurors that a politician and his donor ‘simply had background knowledge about the reciprocal interests of each other, and acted in accordance, without any direct or indirect contact between the parties.’” One could imagine this to be, say, an oil-industry executive who donates to a senator because that senator wants to abolish the Environmental Protection Agency, without ever meeting or communicating with each other.
“Quid pro quo bribery is plainly impossible under those circumstances,” Sittenfield claimed. “Yet after being given standard jury instructions, nearly half of the mock jurors were willing to convict a politician for bribery on these facts. As that study shows and this case confirms, many jurors are willing to infer a corrupt bargain from pure First Amendment–protected activity. Absent strong judicial safeguards, then, every politician and donor risks conviction.”
That is certainly one interpretation of the study. Another view is that the American people are better at sniffing out corruption than the litigants who appear before the Supreme Court—and, indeed, much better than the Supreme Court itself appears to be.
Two other criminal defendants are also asking the Supreme Court to tighten the quid pro quo standard for campaign contributions, both of whom were part of the same criminal conspiracy. In 2020, federal prosecutors charged Larry Householder, the powerful speaker of the Ohio House of Representatives, former state GOP chairman Matthew Borges, and multiple other officials with racketeering as part of a scheme involving nuclear energy in Ohio.
According to prosecutors, Householder and his allies funneled more than $60 million in campaign donations from FirstEnergy, a state utility company, to various state House candidates that supported Householder’s bid to become speaker. In return, Householder engineered a $1.3 billion taxpayer bailout for two nuclear power plants that FirstEnergy operated in Ohio. At the time, news outlets and government officials described it as the worst public-corruption scandal in Ohio history.
Householder, for his part, described it as business as usual. He told the Supreme Court in a petition for review last December that this is just how things work. “Larry Householder’s need for money to fund his ambition to be Speaker had to come from political donors—that is obvious,” he told the justices. “Political donors tend to support the ambitions of those politicians who share common legislative goals—that is equally obvious. So, politicians tend to fundraise through their ideological allies.”
“None of the above is anything other than what happens every day in the course of politics throughout the nation, from city councils to the highest state and federal offices,” Householder continued. “That FirstEnergy had expectations attendant to the millions of dollars they donated to Householder’s 501(c)(4) is echoed by millions of Americans who make far more modest contributions to candidates—but who also expect that their candidate will come through for them.”
In Householder’s reading, the First Amendment allows, in its infinite majesty, for both major utilities companies and ordinary citizens alike to shuffle $60 million into an elected official’s political coffers so that he will provide billions of dollars in taxpayer dollars for their benefit. As a journalist, I no longer contribute to political campaigns, but I would expect any candidate to help bail out my two nuclear reactors as well. (Borges, who was charged on RICO grounds, had at least the good civic sense to not defend the scheme outright in his own petition for review.)
Supporting Sittenfeld and the other two officials in their petitions are three figures who know a little something about public-corruption cases at the Supreme Court: Bob McDonnell, Joseph Percoco, and Bridget Kelly. All three were the named defendants in cases where federal anti-corruption convictions were overturned by the justices, sometimes in unanimous decisions.
In their friend-of-the-court brief, the three ex-defendants sought to further normalize their own misconduct, warning the justices that lower courts had “eviscerated the guardrails” that the justices had sought to erect. “The result is that core First Amendment rights are threatened, officials such as [Sittenfeld] are at risk of losing their liberty and suffering significant reputational damage based on routine political conduct, and states and localities lose their constitutionally-protected ability to regulate their own affairs,” they claimed. A similar brief was filed in Borges’s case, but not in Householder’s.
All three cases also illustrate the high court’s limited understanding of how corruption works. McDonnell, the former governor of Virginia, and his wife had taken roughly $175,000 in luxury gifts and loans from Johnnie Williams, the CEO of a tobacco-based nutritional supplement called Anatabloc. (The FDA later forced it off the market in 2014.) In return, according to court records, McDonnell arranged meetings for the CEO with other state officials, hosted events at the governor’s mansion, and contacted other state officials on Williams’s behalf.
Williams’s goal was to get Virginia state universities to conduct studies on the supplement’s main active ingredient, which would help obtain FDA approval. Along the way, he lavished the McDonnell family with Rolexes and luxury clothes, tens of thousands of dollars in personal loans, and even a $10,000 cash wedding gift to one of McDonnell’s daughters.
An ordinary person would probably conclude that these things all constitute “official acts,” as required by the federal bribery statute. It is impossible to separate these things from McDonnell’s status as governor. Unless you, the reader, happen to be Abigail Spanberger, you cannot set up meetings with Virginia state officials or host special events at the Virginia governor’s mansion. State officials are much more likely to listen to the governor, by virtue of his official position, than they would listen to me or any other ordinary American. A federal jury in Virginia agreed and convicted McDonnell accordingly.
The Supreme Court unanimously overturned that conviction in 2016 on the basis that none of these things were “official acts.” Roberts, writing for the court, took a staggeringly blinkered view of government operations. “Simply expressing support for the research study at a meeting, event, or call,” the chief justice wrote, “similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an ‘official act.’”
This is simply not how the real world works. Here, from Roberts’s own opinion, is one instance of how McDonnell “express[ed] support” for Anatabloc:
In March 2012, Governor McDonnell met with Lisa Hicks-Thomas, the Virginia Secretary of Administration, and Sara Wilson, the Director of the Virginia Department of Human Resource Management. The purpose of the meeting was to discuss Virginia’s health plan for state employees. At that time, Governor McDonnell was taking Anatabloc several times a day. He took a pill during the meeting, and told Hicks-Thomas and Wilson that the pills “were working well for him” and “would be good for” state employees.
Imagine, for a moment, that you are one of these two employees. Imagine that your boss joined you in a meeting about employee health plans, where he specifically and unambiguously told you how great a certain supplement is, how he takes it all the time, and how employees should do the same. Would you conclude that your boss was bizarrely oversharing his personal medical regimen with his subordinates? Or would you infer that he was telling you to do something while carefully avoiding an explicit order that could be used against him later in court?
Percoco, one of the other officials on the friend-of-the-court brief, was a Cuomo administration official in New York who left his formal government job to work for the governor’s re-election campaign. Along the way, he took $35,000 from a real-estate developer and then urged state redevelopment officials to drop a pro-union requirement before receiving state funds. Federal prosecutors charged and successfully convicted him of honest-services wire fraud, but the Supreme Court overturned the conviction in 2023. Private citizens, the court concluded, had no “honest services” with which they could deprive the public, even if they were intimate members of the governor’s inner circle.
Kelly’s scandal was perhaps the most famous of them all. While working for former New Jersey Governor Chris Christie in 2013 as his deputy chief of staff, she and her associates sought to pressure a local mayor to endorse Christie’s re-election bid. When they declined, Kelly opted for political retribution. The co-conspirators misled the Port Authority into conducting a fake traffic study on lane closures on the George Washington Bridge. “Time for some traffic problems in Fort Lee,” Kelly wrote in an email at the time. The chaotic gridlock that followed may have contributed to the death of a woman suffering from a heart attack who could not be reached by paramedics in time.
Federal prosecutors charged Kelly and her associates with defrauding a federally funded program—namely, the Port Authority—for misappropriating its resources under false pretenses for personal political gain. Once more, jurors convicted them on the charges. But the Supreme Court rode to the rescue of a corrupt defendant yet again. Since Kelly and her associates had not sought to personally obtain money or property for themselves, the court concluded in a unanimous 2020 ruling, the federal wire fraud statute did not apply. Any misuse of the bridge’s lanes was an exercise of regulatory power, Justice Elena Kagan reasoned for the court.
Taken in isolation, some of these rulings might be tolerable or even defensible. The overall effect, however, is to nullify nearly any federal anti-corruption prosecution unless it takes the form of a Thomas Nast cartoon: one guy in a top hat hands a big bag of cash with the label “BRIBES” on it to a senator, while the senator hands a piece of paper back to the hatted individual labeled “VOTES.” (Or, more accurately in some of these cases, “official acts.”)
Unfortunately for the American people, public officials are now much more adept at covering their tracks than 19th-century political cartoons had expected. If the Supreme Court reverses the Ohio political-corruption convictions, they will be writing a roadmap for lawmakers and wealthy corporations and individuals alike on how to engage in de facto bribery in a constitutionally protected manner. Neither the 18th-century Americans who drafted the Bill of Rights nor the 21st-century Americans who revere the First Amendment had any such outcome in mind.
As shown by that study that Sittenfeld invoked, Americans recognize that corruption is among the most dangerous infections in any healthy republic, and that strong medicine is sometimes required to purge it from the body politic. Unfortunately, the Supreme Court has all too often decided that the cure is worse than the disease. Whether they will once again make things worse for the patient will likely become clear by the end of the current term.
