Second Circuit Holds No Special Standard for Charging Campaign Contributions As Bribes, Reinstates Charges Against Former NY Lieutenant Governor

Judge J. Paul Oetken of the Southern District of New York had dismissed these counts before trial, a step rarely taken in a federal criminal case, on the ground that the indictment did not even allege certain facts that the government was legally required to prove in order to sustain the bribery claims. Specifically, Judge Oetken held that the indictment was insufficient on its face because: a) it did not allege that there had been an explicitly stated "quid pro quo" agreement between Migdol and Benjamin; and b) such an allegation (and ultimately proof) of an expressly stated quid pro quo agreement was legally required in a case where the alleged "quid," meaning the bribe payment, was a campaign contribution. Judge Oetken also held that in non-campaign contribution cases, by contrast, proof (and therefore an allegation) of an expressly stated quid pro quo agreement was not required; instead, in non-campaign contribution cases proof of the necessary quid pro quo agreement could instead be inferred by the jury from evidence of all the facts and circumstances before it.

Judge Oetken did not draw this distinction between campaign contribution cases and other kinds of bribery cases from whole cloth. Rather, it was derived from McCormick v. United States, 500 U.S. 257 (1991), where the Supreme Court stated that because making campaign contributions is a traditional part of American politics, campaign contributions can constitute the "quid" in a bribery case "only if the payments are made in return for an explicit promise or undertaking" by the official to perform or not to perform an official act. (While McCormick concerned the offense of extortion under color of official right (18 U.S.C. §1951, which is also known as "Hobbs Act Extortion"), courts and litigants have treated the "quid pro quo" requirement of the major federal bribery statutes (Hobbs Act Extortion, as well as 18 U.S.C. §201 (bribery of a federal official or witness), 18 U.S.C. §666(a)(1)(B) and (a)(2) (federal programs bribery), and 18 U.S.C. §1346 (honest services fraud) identically in this respect.) This language, and Justice Kennedy's concurrence the following year in Evans v. United States, 504 U.S. 255 (1992), where he wrote that the required quid pro quo did not have to be an "express" agreement, or else the bribery statute could be frustrated by a "wink and a nod," were interpreted by the Second Circuit in United States v. Garcia, 992 F.2d 409 (2d Cir. 1993) and United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) to impose just such a heightened requirement for an explicitly stated quid pro agreement in campaign contribution bribery cases, and those cases only.