When Campaign Contributions Are a Crime

It’s not every day a federal judge cites Jesse Unruh and Herodotus in the same opinion, but that’s what Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit did in his opinion for the court in United States v. Terry, a Cuyahoga County Court of Common Pleas judge’s appeal of an honest services fraud conviction for accepting bribes from Frank Russo.  Judge Sutton’s opinion begins:

“If you can’t eat [lobbyists’] food, drink their booze, . . . take their money and then vote against them, you’ve got no business being [in politics],” said Jesse Unruh, a one-time Speaker of the California General Assembly, in the 1960s. Bill Boyarsky, Big Daddy: Jesse Unruh and the Art of Power Politics 112 (2007). That is one way of looking at it. Another way of looking at it comes courtesy of the federal anti-corruption statutes, one of which prohibits an official from accepting things of value “in return for” official acts. 18 U.S.C. § 201(b)(2). A jury found that a state court judge did just that and convicted him of several honest services fraud violations. We affirm.

And it concludes:

Not every campaign contribution, we recognize, is a bribe in sheep’s clothing. Without anything more, a jury could not reasonably infer that a campaign contribution is a bribe solely because a public official accepts a contribution and later takes an action that benefits a donor. . . . But when a public official acts as a donor’s marionette—by deciding a case to a donor’s benefit immediately after the donor asks him to and without reading anything about the case—a jury can reject legitimate explanations for a contribution and infer that it flowed from a bribery agreement. Here, the jury rejected any legitimate explanation for Russo’s contributions in the face of strong circumstantial evidence that Terry and Russo had a corrupt bargain. Once the jury found Terry and Russo had an agreement, it could easily find that Terry accepted a bribe, violating the honest services fraud statute along the way. The same holds true for Terry’s conspiracy conviction.

The Herodotus cite occurs in between.