Percoco v. United States (21-1158)

argument 21-1158

Percoco v. United States

Supreme Court of the United States 1h 7m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

▲ 0

Transcript

jump: chapters · speakers · find in transcript

Transcript

Transcript generated automatically by AI and may contain errors.

What is the Supreme Court hearing in Percoco v. United States?

John G. Roberts 0:00

We will hear argument first this morning in case twenty one eleven fifty eight, Percoco

Joseph A. Roth 0:05

versus United States. Mr. Roth. Mr. Mr Chief Justice, and may it please the court. Bribery presupposes an agent who exercises some authority on behalf of a principal. The agent is forbidden to trade that power for private gain. A public official is an agent of the public. and therefore violates the bribery laws if he sells his official authority. This concept is fundamentally inapplicable to someone who is not a public official. Someone who is not an agent of the public and has no official authority to sell. At all relevant times, petitioner here was a private citizen. He took no oath of public office, he received no salary from the public fisc, He possessed no legal authority to bind the state or make decisions for it.

Joseph A. Roth 0:54

What he did have, like many lobbyists and donors and interest groups and others, was influence. In his case, influence drawn from years of public service, from a close relationship to the Cuomo family, and from his senior campaign role. But none of that creates a fiduciary duty to the public. None of it entrusts official power to exercise on the public's behalf. And so none of it can be the predicate for a bribery conviction. By trying to stretch Section thirteen forty six to prohibit the sale of influence, The government also contradicts this Court's decision in skilling. which saved the statute from a due process challenge only by narrowing it to its core and excluding novel outlier theories. And by pressing this influence theory in particular, the government stroll recklessly into a constitutional minefield.

Joseph A. Roth 1:48

Judge Winter was right to call the government's theory a catch all political crime which has no use but misuse. This court should reject that theory and reverse the decision below. And I welcome the court's questions.

Clarence Thomas 2:01

Uh Council, uh let's assume that um petitioner did not um resign uh much more than say uh one afternoon. uh and then engaged in this conduct.

How does the argument define bribery and the role of a public official?

Clarence Thomas 2:17

Uh do you think you would still be able to make the exact same argument?

Joseph A. Roth 2:21

I don't think it would be the exact same argument, Your Honor, because I think if it were that short a period of time, it is very likely that the government would be able to show that the agreement contemplated the use of official power upon his return to office. Right? If he was only out of

Clarence Thomas 2:35

the way,

Joseph A. Roth 2:36

couldn't you make

Clarence Thomas 2:36

that exact same some assumption here, even though uh the period is a bit longer?

Joseph A. Roth 2:42

Well, Your Honor, the the most important response to that is that that wasn't the government's theory in this case. That wasn't the theory on which uh Prococo was tried. It wasn't the theory of the jury instructions, it wasn't the theory the Second Circuit uh upheld. I think the reason for that is because factually it doesn't really work because the agreement here uh was reached no later than everyone agrees July uh of twenty fourteen. At that point, even Prococo was not anticipating that he would return to public service after the campaign. And there's certainly no evidence in the record to suggest that ALO uh the person who paid him believed that he would be returning to public office. In fact, the district court specifically addressed this point at pages 549 to 550 of the JA in a post-trial order addressing the Hobbes act count.

Joseph A. Roth 3:30

And the court said, well sure, you could have a theory of Hobbes Act extortion if someone was threatening to use their future powers upon return to office, but that wasn't the theory here and the the evidence doesn't support it. in this case. So I I don't think that alternative theory that we see in the government's brief can can be a basis to affirm this conviction.

Samuel A. Alito 3:48

So Mr. Roth I understand what you're saying that the that the government didn't prove the kind of facts that Justice Thomas was indicating. But you're asking us um the theory of your case is basically as long as he wasn't in public office, you can't charge him under this statute. And I think um you know if we put aside the facts of this case and test that theory