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Honest services not that simple

Honest services not that simple

It looks very good for Joe Bruno.

It looks very good for Joe Bruno. Maybe not so good for the rest of us, but very good for him, what with the Supreme Court having rejected the vague reading of the law under which he was convicted and preserved only a specific reading which seems not to apply to him. That is the reading that takes “honest services” to refer to no more than bribes and kickbacks.

Bruno, the distinguished-looking wheeler and dealer who for 14 years led one half of our dysfunctional state Legislature, was not convicted of accepting bribes or kickbacks. Indeed the U.S. attorney’s office did not accuse him of that.

It accused him of failing to disclose a conflict of interest, and that’s what the Supreme Court lumped in with an “amorphous category of cases” too vague to allow the citizenry to know exactly what is forbidden. The idea is, a law has to be clear enough so we know what we can’t do.

We can’t take bribes, if we are public officials, but apparently we can take “consulting fees” from businesses that might benefit from our public position and conceal the relationship from public view.

The court didn’t rule directly on Bruno’s case; it ruled on other cases tried under the same law. It will now be for an appeals court to decide if the ruling vitiates Bruno’s conviction. As a layman untutored in the intricacies of the law, I won’t venture a prediction beyond saying of course it will. How could it not?

One of the vexing things about the case against Bruno, from the prosecutor’s point of view, was there was no clear connection between the money he took from various businesses and the decisions he made as a government official. If sometimes he helped those businesses, at other times he didn’t.

The result in the courtroom was that the prosecution had to insist there was no need to establish any connection. It was enough that Bruno had a conflict of interest and didn’t disclose it — even if his governmental actions might have been for the general good.

Now comes the Supreme Court decision, and — whoops! — look what we’ve got: no bribes or kickbacks, just something too vague to pass muster.

The U.S. attorney for our district, Richard Hartunian, put the best possible face on this reversal of fortunes, saying in a press release that the Supreme Court had found the honest services law constitutional — which strictly speaking is true — and as a result, “my office will continue to be able to use this important statute as we hold public officials accountable,” etc.

Yes, hold public officials accountable if they are caught accepting bribes or kickbacks, but not if they are simply cashing in on the prestige of their office without any direct connection to official actions, as Bruno was.

What was he convicted of? Taking $20,000 monthly payments from a businessman-friend in exchange for no discernible work but just for the sharing of what he himself modestly called his people skills?

Where’s the crime?

Sure the businessman-friend, Jared Abbruzzese, controlled a company that got a $250,000 state grant via Mr. Bruno, but no one could show a quid pro quo. Bruno dispensed a lot of grants.

He accepted $80,000 for a worthless horse as a dodgy way to make up for some missed monthly payments? Big deal. Where’s the bribe? Where’s the kickback?

The activities of his that seemed to me more brazen — hustling pension fund investments from labor unions for a financial services company that he quietly worked for, while at the same time moving or not moving labor legislation — the jury acquitted him of.

Even there, however, though he profited to the tune of some $1.3 million, there was no discernible bribe or kickback. He just played on the prestige of his office to hustle a buck, and he kept it dark.

Were the people of New York state getting his honest services? Probably not, not when he was using his state-paid staff to assist him in his private ventures, and not when he was pursuing them from his state-provided office, but the Supreme Court would like the lines more brightly drawn.

You can’t just say, as the mail-and-wire-fraud law was amended to say in 1988, that fraud includes “a scheme or artifice to deprive another of the intangible right of honest services,” without defining honest services.

How is a state legislator to know what’s honest, especially in New York, where the standards are so squishy?

A Senate majority leader with labor bills waiting on his desk calls a labor leader in New York City, like the head of a police union pension fund, whom he has never met, and mentions casually that he knows of a company that manages investments that might serve the union very well. He doesn’t mention that he’s on the payroll of that company, or that he gets a commission on any money he steers their way.

Maybe the union invests with the company, and maybe it doesn’t. Maybe the senator moves the pending bills, and maybe he doesn’t.

Are we, the ordinary citizens, getting the senator’s honest services?

You can see it’s not something you can easily nail down.

The U.S. attorney’s office thought they had it nailed, but now it looks otherwise.

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