A pivotal decision by the U.S. Supreme Court on Wednesday that a federal bribery statute does not prohibit “gratuities” to public officials could upend key corruption cases in Chicago, including the October trial of ex-House Speaker Michael Madigan and the case of the “ComEd Four” who were convicted of a scheme to bribe him.
In the opinion, which has been highly anticipated in Chicago’s federal court, the justices sided 6-3 with the former mayor of Portage, Indiana, James Snyder, who argued to the nation’s highest court that the anti-corruption law under which he was convicted is vague and could potentially criminalize innocent, everyday conduct.
The 18-page opinion, written by Justice Brett Kavanaugh, ruled that the bribery statute commonly known as 666, which is its number in the federal criminal code, applies only to quid pro quo agreements and does not include “gratuities,” meaning rewards given to elected officials after the fact.
The most immediate reaction from the ruling came in the ComEd Four case, in which four defendants wereconvicted last yearin an alleged scheme by the utility to bribe Madigan, the longtime Democratic speaker. Since the case relied heavily on allegations of gratuities, sentencingshave been delayed since January while the parties awaited the Snyder decision.
“This case will be retried,” predicted attorney Gabrielle Sansonetti, who represents one of the four defendants, lobbyist and former City Club of Chicago President Jay Doherty.
Scott Lassar, a former U.S. attorney who represents another ComEd Four defendant, ex-ComEd CEO Anne Pramaggiore, said that in his view, the ComEd convictions will not stand.
“The Supreme Court has made clear that what Anne Pramaggiore was charged with was not a crime,” Lassar said.
Patrick Cotter, an attorney for Michael McClain, the longtime Madigan confidant who was convicted in the ComEd Four case and is Madigan’s co-defendant in the pending racketeering case, echoed his colleagues’ views.
“It’s been a very long war, and we won an important victory today, but the war goes on,” Cotter said.
U.S. District Judge Manish Shah, who took over the ComEd Four case last week after the death of the previous trial judge, U.S. District Judge Harry Leinenweber, set a July 9 hearing to discuss next steps in the case.
A spokesman for the U.S. attorney’s office declined to comment on the high court’s ruling in the Snyder case. Attorney Dan Collins, who heads Madigan’s legal team, also had no comment.
The decision vacates Snyder’s conviction for taking a $13,000 “consulting” fee from a garbage truck dealer that had recently won two lucrative contracts with the town. He did not appeal his conviction on tax fraud counts, which will stand.
Snyder, a Republican whose second term as mayor was cut short by his federal conviction in 2019, said he wasn’t able to comment on the court’s decision.
“We are very happy about the Court’s ruling for Mr. Snyder and the positive impact it will have on his case,” Andréa Gambino, Snyder’s court-appointed attorney in his case before the 7thU.S. Circuit Court of Appeals in Chicago, said in an email. “We are also pleased that the power of federal authorities has been limited and clarified to avoid abuse of the statute going forward.”
Snyder received a sentence of 21 months in prison for the bribery and tax fraud counts, but he remained free pending his appeal.
“He’s paid a terrible price and was falsely accused,” said Indianapolis attorney Jackie Bennett Jr., who represented Snyder in U.S. District Court in Hammond.
The Supreme Court’s majority opinion stated that the 666 statute “proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.”
“The Government’s so-called guidance would leave state and local officials entirely at sea to guess about what gifts they are allowed to accept under federal law, with the threat of up to 10 years in federal prison if they happen to guess wrong,” the Kavanaugh opinion states. “That is not how federal criminal law works. And the Court has rejected the view that it should construe a criminal statute on the assumption that the Government will use it responsibly.”
The opinion also took issue with the term “rewarded,” which is typically interpreted by prosecutors as a reward for a public official after an official act was taken.
“By including the term ‘rewarded,’ Congress made clear that the timing of the agreement is the key, not the timing of payment,” the opinion stated. “Although a gratuity or reward offered and accepted by a state or local official after the official act may be unethical or illegal under other federal, state, or local laws, the gratuity does not violate Section 666.”
The opinion concludes that the government’s interpretation of 666 “would radically upend gratuities rules” and turn the law “into a vague and unfair trap for 19 million state and local officials.”
“We decline to do so,” the opinion concluded. “Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials.”
In a strongly worded 22-page dissent, Justice Ketanji Brown Jackson wrote that the majority opinion relied on an “absurd and atextual reading of the statute” that “only today’s Court could love.”
The dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan, said the majority’s “fretting falls flat,” arguing the Snyder case did not call for the high court “to settle, once and for all, which gratuities are corrupt and which are quotidian.”
“Reading 666 to prohibit gratuities — just as it always has — poses no genuine threat to common gift giving, but does honor Congress’ intent to punish rewards corruptly accepted by government officials in ways that are functionally indistinguishable from taking a bribe,” the dissent stated.
Meanwhile, the fallout from the ruling was immediate and is likely to last months.
The 666 statute, which has frequently been used in Chicago to prosecute public officials, makes it illegal to “corruptly” accept anything over $5,000 in value with the intention of being “influenced or rewarded” for an official act.
The Chicago-based 7th Circuit U.S. Court of Appeals had held in a series of opinions that the word “rewards” included gratuities and that prosecutors did not need to prove a prior quid pro quo agreement.
That precedent proved to be a particularly powerful arrow in the U.S. attorney’s office’s quiver, especially in a city and state where savvy politicians, many of whom double as lawyers, know how to toe the line of legality and avoid obvious “wink-wink” deals.
Legal experts who spoke to the Tribune said the Supreme Court’s decision will have a significant impact on how public corruption cases are handled going forward.
“There is no question it makes it harder for the government,” said Joel Bertocchi, a former federal prosecutor and veteran appellate attorney who is now a partner in the firm Akerman LLP. “It’s going to prevent the prosecution of facts that are potentially very ugly, but not criminal.”
Bertocchi pointed to another Supreme Court decision throwing out the conviction of former Virginia Gov. Robert McDonnell, who accepted gifts, including vacations, designer clothes and a Rolex watch from a businessman seeking state help. In that case, the high court ruled unanimously that prosecutors had improperly charged bribery under a different statute without proof of an explicit quid pro quo.
“If you look at what Gov. McDonnell did, it’s incredible,” Bertocchi said. “But it’s not a bribe.”
Bertocchi said the decision in the Snyder case is “consistent” with the way the Supreme Court has gone in recent white-collar cases like McDonnell, though this ruling seems to ignore the conservative-led trend of reading the “plain language” of the statute rather than the legislative history of a law.
He also said it was interesting that the high court was essentially throwing it back to state authorities to decide when gratuities to a public official are improper — something that has never been on the radar in places like Illinois, where even ethics rules are notoriously toothless.
“It’s the feds who are viewed as an independent watchdog for public corruption,” Bertocchi said. “Nobody in the city or state is going around policing gratuities.”
Political experts and watchdogs expressed concern the decision removes key guardrails that hold elected officials in check, potentially making Illinois politics even wilder.
Chris Mooney, a retired political science professor at the University of Illinois Chicago, said that just like a supply-and-demand curve in economics, the ruling will mean increasing pressure to break the law.
“You figure there’s a demand for corrupt services,” Mooney said. “The problem is that it takes the feds out of the equation in terms of prosecution and investigation, and they’re the only ones that ever catch them.”
Alisa Kaplan, executive director of Reform for Illinois, called the court’s decision “very disturbing.”
“It undermines the main safeguard we had against corruption in Illinois,” she said. “It makes it so much harder to prove corruption. It’s very hard to prove a quid pro quo and the law acknowledges that.”
She noted the irony of the court ruling while some of its own justices are embroiled in financial scandals over accepting their own gifts. She also said Congress is so deadlocked that it might be difficult to pass legislation to reword or reinstate key parts of the 666 statute.
Proceedings in least a half-dozen Chicago-area corruption cases had been put on hold pending the Snyder decision, including sentencing in the “ComEd Four” case and the bombshell case against Madigan, which has been delayed until October so there would be plenty of time to digest the high court’s decision.
Last week, lawyers for convicted former Ald. Edward Burke, 14th, attempted to have his sentencing on his corruption conviction delayed until July because some of the charges involved the 666 statute. U.S. District Judge Virginia Kendall declined to do so, however, saying the Supreme Court’s ruling in Snyder would not affect Burke’s sentencing guidelines. Kendall sentenced Burke on Monday to two years in prison.
In Madigan’s case, it’s possible defense attorneys will request that certain counts be thrown out in light of the Wednesday ruling, though prosecutors have said they are willing to forgo any arguments to jurors that the benefits provided to Madigan were gratuities.
Prosecutors also have noted that the 666 statute is charged in only five of the 23 counts in the Madigan racketeering indictment.
Among them is a pivotal conversation from August 2018 when Madigan met in his downtown Chicago law office with then-Ald. Danny Solis, 25th, to discuss Solis’ appointment to a lucrative state board position.
Solis, who unbeknownst to Madigan was an FBI mole, made it clear he’d helped bring law business to Madigan and wanted something in return once he retired from City Hall, perhaps a position with the Commerce Commission or Labor Relations Board, which Solis said were both “very generous in their compensation,” according to federal prosecutors.
“Don’t worry about it,” Madigan allegedly said during the conversation, which was secretly being videotaped by Solis. “… Just leave it in my hands.”
In addition to the Solis board appointment, the statute was used to charge an alleged scheme to steer a ComEd board seat to Democratic political operative Juan Ochoa, payments ComEd made to former 13th Ward Ald. Frank Olivo, former 23rd Ward Ald. Michael Zalewski and others, and an alleged push by Madigan to win law business from the developers of a parcel in Chinatown.
The Supreme Court ruling also affects a pending motion by Madigan to dismiss all the bribery charges tied to gratuities, which has been pending before U.S. District Judge John Robert Blakey for more than a year.
The motion seems to mirror the Supreme Court court’s ruling in several key ways, arguing there is a distinguishable difference between legal gratuities given to curry favor because of an official’s position from illegal gratuities given because of a specific act.
In Madigan’s case, the motion argued, prosecutors failed to show any direct link between actions he took or votes he may have taken in the General Assembly and benefits that were bestowed by ComEd or AT&T Illinois, which was also accused of participating in a scheme to influence the speaker.
Both AT&T and ComEd entered into deferred prosecution agreements with the U.S. attorney’s office, admitting their roles in the schemes to influence Madigan in exchange for prosecutors dropping criminal charges. ComEd also agreed to pay a record $200 million fine, while AT&T was fined $23 million.
The motion said that applying the 666 bribery statute to Madigan’s conduct “would expose untold numbers of public officials and their constituents to federal prosecution.”
The ruling in Snyder came down two months after lively arguments before the Supreme Court justices back in April, during which many of the justices seemed sympathetic to Snyder’s argument that the statute’s vague wording could sweep up all types of legal gratuities that people offer every day.
Justice Amy Coney Barrett at one point started a line of questioning by telling the government’s attorney, Colleen Roh Sinzdak, “I’m increasingly worried about the government’s position.”
The nearly two-hour arguments included offbeat references to plastic surgeons, the Cheesecake Factory, Chipotle, Al Capone and the cheap Trader Joe’s wine known as “Two Buck Chuck,” as in whether that bargain bottle is acceptable while the expensive product of a noted vineyard isn’t.
But over and over, the justices kept coming back to concerns over the word “corruptly” and how people were supposed to know where the line was drawn.
“What is innocuous and what is not?” Justice Kavanaugh at one point asked Sinzdak, an assistant to the solicitor general. “And just as important, how is the official supposed to know ahead of time?”
Even before the Supreme Court decided to take up the Snyder petition, all sides in the ComEd Four case seemed to recognize that the issue was coming to a head.
In a jury instruction conference in May 2023, shortly before the jury began deliberations, Leinenweber, the judge in the ComEd Four case who recently died, acknowledged that many of his rulings would likely be scrutinized by higher courts.
“Well, you’re making your record, and you have one,” he told the defense at a jury instruction conference. “Eventually, it’s going to probably get to the Supreme Court, and either you’re right or you’re wrong. And if you’re right, then … ”
“Congratulations,” Assistant U.S. Attorney Amarjeet Bhachu interjected.
Post-Tribune reporter Amy Lavalley contributed.
