Do Federal Public Corruption Charges Matter Anymore?

I ask the above question for two reasons this week, first as the public corruption investigation into NJ Dem Sen. Bob Menendez is expanding with more subpoenas...

Another round of federal grand jury subpoenas went out this week in connection with the corruption investigation into Democratic Sen. Bob Menendez of New Jersey.

Two sources familiar with the matter said at least one powerful New Jersey politician — North Bergen Mayor Nicholas Sacco — was among those who received subpoenas.

A North Bergen spokesman said, “As they always have, Mayor Sacco and the Township of North Bergen will comply with any inquiry they receive from law enforcement and will cooperate fully.”

For months, Menendez has been under criminal investigation into whether he and his wife improperly took cash and gifts from the owners of IS EG Halal, an Edgewater halal meat business.

Menendez and the company’s owners have denied any wrongdoing.

“I know of an investigation. Don’t know the scope or the subjects and of course stand ready to help authorities when and if they ask any questions,” Menendez said in October.

A Menendez spokesman declined to comment.

The newly issued subpoenas — including the one delivered to Sacco — are unrelated to any allegations involving the meat company and Menendez, the two sources said.

The sources added that the subpoenas in part seek information about certain legislative changes in New Jersey, but they did not offer details.

The subpoena for Sacco, a Democrat, was issued Wednesday, a day after he was re-elected mayor.

Sacco’s spokesman said, “We do not feel that it would be appropriate to offer any additional comment at this time.”

An FBI spokesman and a spokesman for U.S. Attorney Damian Williams of Southern New York, whose office is leading the federal investigation, declined to comment.

I mention the Menendez public corruption investigation for the reason that the Roberts Court this week overturned not one but two public corruption convictions in New York.

The Supreme Court on Thursday threw out two fraud convictions during Gov. Andrew M. Cuomo’s administration in New York, dealing prosecutors the latest in a series of setbacks in their efforts to pursue federal charges of public corruption in state government.

The cases were among the blockbuster public corruption prosecutions brought by Preet Bharara, the former U.S. attorney for the Southern District of New York, that fed into Albany’s reputation as a cesspool of corruption.

One case concerned Joseph Percoco, a former aide to Mr. Cuomo convicted of taking illicit payments to benefit a Syracuse-area developer.

The other involved Louis Ciminelli, the owner of a Buffalo construction firm convicted of fraud in a bid-rigging scandal in connection with Buffalo Billion, a development project championed by Mr. Cuomo, a Democrat.

The question in the first, Percoco v. United States, No. 21-1158, was whether Mr. Percoco could be prosecuted under a federal law that makes it a crime to deprive the government of “honest services” for conduct that took place after he resigned his official position to run the governor’s 2014 re-election campaign.

Alito threw that conviction out because Percoco wasn't in the government at the time, but the second case applies broadly to the Menendez investigation.

The prosecutors’ legal theory was that Mr. Ciminelli had committed fraud by depriving the government of its “right to control” the use of its assets by failing to disclose potentially valuable information.

By the time the case reached the Supreme Court, though, the government had disavowed the theory. That made for an awkward argument when the justices heard the case in November, one focused on how and how badly the government was going to lose.

Justice Thomas, writing for the court, said flatly that “the right-to-control theory is invalid,” returning the case to the appeals court for further proceedings.

“Because the theory treats mere information as the protected interest, almost any deceptive act could be criminal,” he wrote.

In other words, the government's use of public corruption laws just got torched. Even if somehow the investigation involves charges against Menendez, this court will overturn the conviction down the road. At this point, bribery and fraud in government service is now perfectly legal because the Supreme Court has declared the theory that misuse of taxpayer resources is fraud is invalid. 

So yeah, if I'm Menendez's lawyers, I tell the Justice Department that this conviction would be overturned, so there's no point in the investigation.

Whether or not that's true, well..