Former Illinois House Speaker Michael Madigan leaves the Dirksen Federal Courthouse early this year.
Ashlee Rezin/Sun-Times
A cash-strapped mayor in northwest Indiana goes to a trucking company after engineering city contracts in its favor, and he tells its owners he needs money.
They pay him $13,000 for consulting. But there’s no evidence he did any work.
The feds call that corruption. But this week, the U.S. Supreme Court will consider whether the mayor even committed a crime under a law that’s popular among federal prosecutors — including those pursuing former Illinois House Speaker Michael J. Madigan.
The once-powerful Chicago Democrat would likely be on trial right now if it weren’t for the arguments Monday before the nation’s high court in the conviction appeal of former Portage, Indiana, Mayor James Snyder. One judge delayed Madigan’s trial until October to see how the court rules. A second put sentencing hearings on hold in a related bribery case involving ex-ComEd CEO Anne Pramaggiore and three others.
The judges are waiting for a decision from a Supreme Court that has taken “a very narrow view” of public corruption lately, said former Detroit U.S. Attorney Barbara McQuade.
McQuade said Snyder’s “corrupt solicitation” conviction in March 2021 looks like “textbook bribery … a case that I would charge all day, every day.” But McQuade, now a University of Michigan law professor, worries the high court will wind up removing “yet another tool that prosecutors have to hold corrupt public officials accountable.”
The law is thoroughly frustrating to defense attorneys. It’s also led to disagreement among appellate courts, which might help explain why the case wound up before the nine justices.
The central question during the court’s arguments Monday will be whether the law used to prosecute state and local officials for bribery also criminalizes something called a “gratuity.”
Unlike a hypothetical bag of cash that changes hands to explicitly pay for a public official’s vote, a gratuity is a reward given corruptly — but without a quid pro quo — for an official act that has usually already happened.
The court picked up the Snyder case in December, disrupting the momentum prosecutors in Chicago had built through a series of corruption trials leading up to Madigan’s. The trial of the former speaker, accused of leading a criminal enterprise designed to enhance his political power, was originally set to begin earlier this month.
There’s no telling how the Supreme Court’s decision will affect Madigan’s trial until it comes down. Madigan’s lawyers didn’t comment, but in court they noted that seven of the 23 counts he faces in his indictment are tied to the law in question.
Former U.S. Attorney Scott Lassar, who is representing Pramaggiore, one of four ex-political insiders found guilty last year of a long-running scheme to bribe Madigan to benefit ComEd, expressed confidence in Snyder’s challenge.
Lassar bluntly told a judge in January the convictions in the ComEd case “are not going to stand.”
Prosecutors say he and his colleagues have declared victory too soon.
A $13,000 check in Portage
The events leading to Monday’s arguments date back more than 10 years — even before the FBI began its probe of Madigan. Here’s how the feds have laid it out for the Supreme Court:
Snyder became Portage’s mayor in January 2012. But he was short on cash. He was behind on his personal taxes, and he owned a mortgage company that had been short on its payroll taxes. The IRS had already levied Snyder’s personal bank accounts.
Meanwhile, Snyder’s city needed new garbage trucks. Prosecutors said he had a friend on the city payroll handle the bidding process, and that person tailored it to favor a particular business: Great Lakes Peterbilt. It wound up landing the contract in 2013.
The city later opened a second round of bidding for two trucks. But the specifications matched a particular truck that had been sitting on the Great Lakes Peterbilt lot for two years, exposed to the elements. Snyder exchanged dozens of calls and text messages with the company’s owners along the way.
Another contract went to Great Lakes Peterbilt. In all, the two contracts were worth $1.125 million.
Less than three weeks after that second contract, Great Lakes Peterbilt wrote a $13,000 check to a defunct company owned by Snyder — and most of that money quickly made its way into Snyder’s personal bank account. The feds say Snyder gave varying explanations — that he’d been paid “to lobby the state legislature” or for various types of consulting. No consulting agreement was ever produced.
But Snyder’s attorneys say Snyder did not approach the company’s owners for money “until after Portage awarded the contracts.” There was no “quid pro quo” — or meeting of the minds.
That’s a crucial distinction in the court case. Michael Ettinger, a longtime local defense attorney, agreed the circumstances of Snyder’s case would seem “completely corrupt” to most people — but less so if there’s a need to prove a “quid pro quo.”
“I think a jury would find there’s something wrong there,” Ettinger said. “But if they were instructed by the court that there has to be an expressed quid pro quo agreement, I don’t know how they can find that.”
Which brings us to the central argument the Supreme Court will be considering — the language of the law used to convict Snyder.
Bribes and rewards
That law is known as the “federal program bribery” statute. It applies to any state or local government agent who “corruptly solicits … anything of value … intending to be influenced or rewarded in connection with any business” worth $5,000 or more.
Snyder’s attorneys say that language criminalizes only bribery — “a quid pro quo exchange of something of value for official conduct.” They say it does not outlaw gratuities, or “payments in appreciation for actions already taken” without that quid pro quo.
If it did, prosecutors wouldn’t even need to prove the quid pro quo, they’ve said. The feds could accomplish their goal simply by showing that a state or local official “accepted a gift in connection with official business.”
Prosecutors say the law “clearly” covers gratuities through its use of the word “rewarded.” They’ve even cited dictionary definitions of the word.
“Someone may be ‘rewarded’ for returning a lost wallet, for example, even if she did not enter into any agreement with the owner to find the wallet in exchange for the money,” they wrote. “Likewise, a public official may be ‘rewarded’ for steering lucrative contracts to a business, even if the official and the business owners did not agree on the payment beforehand.”
The feds also reject the idea the law could be used to criminalize “innocuous tokens of gratitude.” That’s because it requires the gratuity to be given “corruptly,” which they say already appropriately limits the law’s application.
Regardless of how the high court rules, Ettinger said “there has to be some kind of mental state” in play. He once defended Robert Blagojevich, the brother of convicted ex-Gov. Rod Blagojevich. Prosecutors wound up dropping charges they’d filed against Robert.
“When you’re giving a politician money, it’s such a gray line,” Ettinger said. “You’ve got to let people who are potentially going to be charged know what’s legal and what’s not. And right now, they don’t.”
This for that
The Supreme Court’s decision is expected by the end of June. U.S. District Judge John Blakey, the presiding judge in Madigan’s case, told defense lawyers they could have until July 8 to file motions reflecting that ruling.
Legal experts who spoke to the Chicago Sun-Times and WBEZ say a ruling in Snyder’s favor could force some changes in Madigan’s upcoming trial, but they don’t think it would kill the case.
Perhaps more dicey are the prospects for last year’s convictions of Pramaggiore and three others accused of bribing Madigan for ComEd. U.S. District Judge Harry Leinenweber put sentencings in that case on hold “until further order of the court” because of the Snyder case.
Renato Mariotti, a former federal prosecutor who is now a partner at Bryan Cave Leighton Paisner LLP, said real-world investigations tend to be more complicated than in the Snyder case, and he agreed last year’s ComEd bribery trial involving Pramaggiore is a good example.
“Providing a benefit to someone in power, even after an official act has been taken, can potentially result in future benefits,” he said.
The four defendants in the ComEd bribery trial were accused of arranging for jobs, contracts and money for Madigan allies. The payments largely followed the 2011 passage of legislation that helped ComEd’s bottom line. But many also came in advance of another crucial bill passed in 2016.
Leinenweber wrote in January the ComEd case “was consistent with gratuities.” He also wrote there was “sufficient evidence” of a “‘this’ … for ‘that.’”
Either way, the key question will be whether the jury instructions in that case hold up against the Supreme Court’s guidance, the experts said. That’s another reason the decision will be closely scrutinized in Chicago.
Meanwhile, there’s a new mayor in Portage. Austin Bonta said he got involved with the city’s government shortly before Snyder’s indictment in 2016. He became mayor a few months ago, and he says the community has largely moved on from the scandal.
Bonta said he tried to learn from what happened and make changes at City Hall. But he expressed concern over a Supreme Court ruling that could mean only bribery — and not gratuity — is outlawed among state and local officials.
“I mean really, simply, to be seeking money from a city vendor, I just think, is always an invitation to trouble,” the mayor said.
Jon Seidel covers the federal courts for the Chicago Sun-Times, and Dave McKinney covers Illinois politics for WBEZ.