Post-Oral Argument Courthouse Steps: Percoco v. United States

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On November 28, 2022, the U.S. Supreme Court is set to hear oral argument in Percoco v. United States.

Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.” 

In this case, which has potentially broad implications for the continued criminalization of politics and lobbying, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions.

Joseph Percoco was a longtime friend of New York Governor Andrew Cuomo and served as Governor Cuomo’s Executive Deputy Secretary until he decided to leave government service to manager Governor Cuomo’s reelection campaign.  While he was working on Governor Cuomo’s campaign, he was paid by a New York businessman to reach out to a state agency to resolve a labor issue.  According to the trial court and the Court of Appeals for the Second Circuit, this effort deprived the citizens of New York of Mr. Percoco’s honest services.  

According to both courts, the fact that Mr. Percoco was not a state employee was not dispositive -- what mattered was that Mr. Percoco “dominated and controlled” government business and that government officials “actually relied on” Percoco based on some “special relationship” between Mr. Percoco and the government.

If upheld, the Second Circuit’s test has the potential to greatly expand the application of federal honest services charges to people engaged in politics and lobbying.

This talk, featuring Mr. Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, will break down the issues in this case and provide instant analysis on the oral argument heard by the Court.

Featuring:

  • Mr. Gary M. Lawkowski, Counsel at Dhillon Law Group and Senior Fellow with the Institute for Free Speech.  

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.