The Yale Law Journal


The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco

16 Feb 2024

abstract. In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to make prosecuting corrupt campaign managers arduous.


At the opening of the Sound of Music, Mother Superior sings, “How do you solve a problem like Maria?”1 The Chief Justice of the United States Supreme Court has a similar conundrum on his hands. Essentially, “How do you solve a problem like ‘The Donald?’”2 In this Essay, I argue that the Supreme Court’s refusal to acknowledge Donald J. Trump in cases about political corruption like Percoco v. United States3 will not solve the risk of corruption that Trump poses, especially in light of the political violence he unleashed at the Capitol on January 6, 2021, in an attempt to remain in power for an unearned second term.4

Percoco deals with one type of corruption: the desire of Joseph Percoco to make money by leveraging his relationship with a sitting governor, thereby perverting how government would normally work, for his personal gain.5 As the Supreme Court once explained, this type of “[c]orruption is a subversion of the political process. . . . The hallmark of [this brand of] corruption is the financial quid pro quo: dollars for political favors.”6 By contrast, Trump’s attempts to overturn a presidential election raise a different and distinct type of corruption: the desire to remain in power despite the will of the people, thereby perverting the entire constitutionally prescribed way that U.S. Presidents are elected four years at a time.7 As Judge David Carter of the District Court for the Central District of California concluded, “[b]ased on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress [from counting electoral college votes] on January 6, 2021.”8 Both of these strains of political corruption are worthy of criminal prosecution. Indeed, although the means of corruption differed, the ultimate end was the same: the subversion of the political process.

So far, Chief Justice Roberts and his fellow Justices have largely been able to sidestep former President Donald Trump’s norm-breaking and Constitution-undermining behavior, and his increasingly long list of criminal legal problems ranging from allegedly falsifying business records, to allegedly unlawfully retaining military secrets, allegedly violating Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) statute, and allegedly attempting to overthrow the 2020 election.9 The Supreme Court seemed to be running out the clock on Trump’s presidency, ultimately not ruling on certain key matters like Trump’s alleged violation of the Constitution’s Emoluments Clause and Trump’s various baseless challenges to the way the 2020 election was administered, thus rendering them moot.10 Even during his presidency, the Justices only decided cases related to his norm-breaking conduct when compelled to resolve unavoidable conflicts.11 And the Court has continued to dodge Trump cases after his presidency.12 This refusal to reckon with the risks of political corruption posed by Trump, exacerbates the risk of potential political violence ahead of the 2024 election.

Against the post-January 6 backdrop, the Supreme Court issued Percoco v. United States and Ciminelli v. United States, which make corruption harder to prosecute.13 The Congressional Research Service summarized the state of public-corruption law in 2023:

While Congress has passed broadly worded legislation to cover the self-interested actions of . . . state . . . officials . . . the Supreme Court has repeatedly adopted narrow interpretations of the statutes . . . signaling that broad constructions could raise constitutional concerns about vagueness or federalism. This trend continued in . . . Ciminelli [] and Percoco.14

With a political figure like Trump—who was twice impeached (once for January 6) and faces a quadruplet of indictments (including two for January 6), yet is still a leading candidate for the presidency in 2024—this continuing deregulation of corruption by the Roberts Court is bafflingly obtuse.15 Here I borrow the definition of “corrupt” from Arthur Anderson LLP v. United States, wherein the words “‘[c]orrupt’ and ‘corruptly’ are normally associated with wrongful, immoral, depraved, or evil [acts].”16

Although Percoco and Ciminelli are interrelated and both have the potential to make future prosecutions of corrupt behavior more difficult,17 I will focus primarily onthe former. Percoco has the greater potential to impact ongoing prosecutions of Donald Trump or the potential prosecution of his campaign and PACs for their fundraising practices after the 2020 election.18 My argument here is that the Supreme Court in Percoco should have taken judicial notice of the peculiar post-January 6 reality in which the case was decided.19 By judicial notice, I mean the Court’s practice of noting the momentous political or economic events of the nation that provide context for a particular legal decision outside of the four corners of the case they are deciding. If the Court took judicial notice of how the events of January 6 imperiled the basic constitutional underpinnings of how presidents are elected and exacerbated the risk of an unelected president corruptly remaining in power, then this may have prompted one or more Justices to reconsider and change their vote in Percoco. The Justices might have better realized that this is a particularly fraught time for the Supreme Court to signal increased judicial tolerance for corrupt political behavior. Had five Justices looked at this case from this capacious vantage point, the case may even have been decided the other way affirming Percoco’s conviction.

This Essay will proceed in four parts. In Part I, I will discuss the culture of corruption in Albany to contextualize Percoco’s prosecution by the U.S. Attorney’s Office for the Southern District of New York. In Part II, I will explore how the Percoco decision exacerbates the Roberts Court’s ongoing deregulation of corruption. In Part III, I will argue that the Supreme Court in Percoco squandered an opportunity to take judicial notice of the post-January 6 context in which it rendered the Percoco decision. Finally, in Part IV, I discuss how Percoco may be used by future campaign managers and even former President Trump to avoid criminal liability.

I. albany’s culture of corruption

When Joseph Percoco and Louis Ciminelli were prosecuted, their indictments were part of a broad effort by the U.S. Attorney of the Southern District of New York (SDNY) Preet Bharara to address bribery in New York’s capital, Albany. That U.S. Attorney Bharara would prosecute a bribery scheme against Percoco, who worked in Governor Andrew Cuomo’s administration and reelection campaign wasn’t surprising to Albany watchers as Bharara had been trying to clean up corruption in Albany for years.20 What has been troubling is how much the Supreme Court has run interference with anticorruption federal prosecutors like Bharara through a string of white-collar crime rulings like Skilling v. United States, McDonnell v. United States, Kelly v. United States, and now, Percoco.21

The Percoco/Ciminelli tale is partially a story about money in politics, as one actor was a campaign manager and the other was a campaign donor. Percoco (who raised $45 million for Governor Cuomo’s successful reelection in 2014)22 and Ciminelli (who gave $92,300 in political contributions to Cuomo over two election cycles)23 were originally charged in the same indictment for their roles in two overlapping criminal schemes related to the Buffalo Billion development project during Governor Cuomo’s administration.24

This is also a story about when and how the government is allowed to police corruption. There was a time not long ago when Albany gave Washington, D.C. a run for its money in how many public-corruption prosecutions it generated.25 During this time, as Columbia Law School Professor Richard Briffault explained, “[i]t was said more people [in Albany] left office from indictments than electoral defeats.”26 The Percoco/Ciminelli prosecutions were spearheaded by Bharara, who was trying to wipe out the fetid culture of corruption in Albany.27 During this time, Bharara brought anticorruption prosecutions against Democratic Speaker of the Assembly Sheldon “Shelly” Silver as well as Republican Senate Majority Leaders Joseph Bruno and Dean Skelos.28 The New York executive branch in Albany had a well-earned reputation for an illegal pay-to-play culture that spanned several governorships and infected both political parties.29

One episode stands out in particular: Governor Cuomo’s decision in 2014 to disband the Moreland Commission to Investigate Public Corruption.30 Once the Moreland Commission’s work started getting too close to his political allies, Cuomo shuttered the investigation.31 As investigative reporter Ronan Farrow would later uncover, “interviews with a dozen former officials with ties to the commission, along with hundreds of pages of internal documents, text messages, and personal notes obtained by The New Yorker, reveal that Cuomo and his team used increasingly heavy-handed tactics to limit inquiries that might implicate him or his allies.”32

The ethically challenged culture surrounding New York State government generally—and Governor Cuomo in particular—provides context for the corruption charges leveled against Percoco. It also illustrates that the ability of federal prosecutors to fight state corruption is particularly necessary because local or state prosecutors might disregard the criminality of a powerful governor or a fellow local partisan.33 Moreover, had Percoco been charged with a state crime, then-Governor Cuomo could have pardoned him, essentially walling off a corrupt man from any legal consequences and thwarting the rule of law. Allowing federal prosecutions of state-level officials short-circuits this potential corruption doom cycle.

With that context on the necessity of federal prosecution in mind, the factual background of Percoco is as follows. Governor Andrew Cuomo was the son of Governor Mario Cuomo. Percoco worked for both governors. While eulogizing his late father, Andrew Cuomo even referred to Percoco as Mario Cuomo’s “third son.”34 The New York Post referred to Percoco as the younger Cuomo’s “enforcer.”35 As the judge in his criminal trial summed up, “[a]s a longtime friend of Cuomo, Percoco was one of the most powerful members of the Governor’s administration.”36 Percoco was the executive deputy secretary to Governor Cuomo between January 2012 and mid-2014, and again in 2015 (during the period that the Moreland Commission was abortively probing corruption in New York). Cuomo would later step down from the governorship after a grueling report on his alleged sexual harassment and bullying of his accusers, and the Assembly’s exploration of possible impeachment.37

A jury convicted Percoco in 2018 of accepting $315,000 in bribes in exchange for helping a corporation get business with New York State.38 In his certiorari petition, Percoco’s lawyers argued that “[w]hen a public official accepts money to convince the government to do something, we call him a crook. But when a private citizen accepts money to convince the government to do something, we call him a lobbyist.”39 They thus tried to draw a rhetorical line between lobbyists and crooks. But this can be a distinction without a difference.40 There is nothing about being a lobbyist which makes such a person an angel or immune from criminal prosecution. Consider the case of fallen lobbyist Jack Abramoff, who pleaded guilty to conspiracy, honest-services fraud, and tax evasion.41

There was ample evidence that Percoco and the businessmen charged in his conspiracy were conscious that they were participating in a crime. Had Percoco been a mere lobbyist, then presumably he would have just sent normal invoices requesting payment for his lobbying services. But instead, in emails among the coconspirators, the group referred to the money changing hands as “ziti,” thereby copying verbiage from HBO’s mob-boss crime drama, The Sopranos.42 Prosecutors hammered this point during closing arguments:

[SDNY] prosecutor, David Zhou, cited emails from Mr. Percoco . . . ”begging, requesting, demanding ziti.” “‘Where the hell is the ziti?’ ‘I have no ziti,’” Mr. Zhou said, quoting from emails Mr. Percoco sent . . . adding that jurors should know “exactly what Joe Percoco was demanding.” “He was demanding cash bribes,” Mr. Zhou said.43

Zhou ended by emphasizing to the jury, “[t]his is not how honest and honorable public servants talk . . . . This is how criminals talk.”44

In a letter to Judge Valerie Caproni written after he was convicted and before sentencing, Percoco expressed remorse and responsibility for his crimes, saying, “I regret that I made even a single New Yorker question the integrity of their government.”45 He added, “Your Honor, the choices that have brought me before this Court . . . were my choices and my choices alone.”46 Judge Caproni said at Percoco’s sentencing, “I hope this sentence will be heard in Albany,” adding that “[i]f you can’t live on a public sector salary, get out of government.”47 Percoco was sentenced to six years.48 After his sentencing, even Governor Cuomo said, “Joe Percoco is paying the price for violating the public trust.”49

However, in May 2023, the Supreme Court reversed Percoco’s conviction on the honest-services-fraud count.50 Because the appeals process is so slow, Percoco had already served his full sentence when the Court decided his case in his favor.51 In Percoco, the Court ruled that the jury instructions about the honest-services charge were too vague and thus his conviction on that count could not stand.52 In so ruling, the Court reversed over forty years of precedent in the Second Circuit about honest-services-fraud charges for private individuals who “dominated and controlled” government business.53 Recall that Percoco was able to achieve the government action the business bribing him wanted done.54

Key to the Percoco decision was that his malfeasance happened during the interregnum between his stints in state government while he was working as campaign manager for Cuomo’s 2014 successful reelection campaign as a private citizen.55 As the Supreme Court wrote in Percoco: “‘the intangible right of honest services’ codified in § 1346 plainly does not extend a duty to the public to all private persons . . . .”56 However, as the government pointed out in its brief before the Court, Percoco kept his New York State offices while he was Cuomo’s campaign manager: “As Executive Deputy Secretary, petitioner [Percoco] had two offices in the Executive Chamber, one in Albany and one in New York City, and he continued to use them ‘to conduct state business’ while working on the campaign . . . .”57 Percoco also used a New York government phone approximately 837 times while he was running the Cuomo reelection campaign.58 Thus, the Court’s conclusion that Percoco was not a state employee, or at the very least clothed with state authority, is undermined by his actual actions and his use of state-owned equipment and office space during the key period. Only in a footnote did the Court address and then reserve judgment on whether Percoco’s exit from government was just a sham.59 On remand, the Second Circuit vacated Count Ten of Percoco’s conviction on honest-services fraud in accordance with the Supreme Court’s ruling in his favor.60

When Percoco was pending at the Supreme Court, Dean of the University of Wisconsin Law School Daniel Tokaji predicted that Percoco’s argument, “that he could not be guilty of bribery because he was technically a private citizen at the time, would ‘open a gaping hole in our public corruption laws.’”61 With the Supreme Court ruling in Percoco’s favor, this gaping hole is now a reality. As lawyers for the government argued in oral arguments before the Supreme Court, “[Percoco’s proposed] rule would allow an individual to formally leave government for a single day, accept a bribe in exchange for ordering government employees to take official action, and return to formal employment without penalty.”62 This extreme hypothetical is permissible under the holding in Percoco.63

There is still some hope for state courts to apply state anticorruption laws, as the New Jersey Supreme Court ruled post-Percoco that a candidate could be charged with bribery under a state statute even though he was not a public official.64 But at the federal level, as lawyers Lindsay E. Ray and Matthew S. Chester noted right after Percoco was handed down, “honest-services fraud remains an important, though weakened, tool in the Government’s prosecutorial toolbox. But the Percoco decision will, no doubt, make it more difficult for the [federal] Government to assert honest-services fraud theories against private individuals moving forward.”65

II. the roberts court’s deregulating corruption

The Percoco ruling is just the latest in a long string of pro-corruption rulings by the Roberts Supreme Court. As recent indictments against Republican Congressman George Santos and Democratic Senator Bob Menendez show,66 no political party has a monopoly on political corruption and prosecutors across the political spectrum have used honest-services-fraud charges to punish this behavior, or at least they did until the Roberts Court interfered.67 Both Republican and Democratic governors have been charged with honest-services fraud and bribery68—and both Republican and Democratic members of Congress have been charged with fraud.69

Previous Supreme Courts cared more about corruption.70 Unfortunately, the Roberts Court has been redefining corruption in increasingly restrictive ways in both campaign-finance and white-collar crime cases since 2006.71 In campaign-finance cases like Randall v. Sorrell, Davis v. FEC, FEC v. Wisconsin Right to Life (“WRTL II”), Citizens United v. FEC, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, and McCutcheon v. FEC, the Supreme Court has narrowed corruption to mean only quid pro quo exchanges, thereby making it easier to rule that certain campaign-finance laws are not narrowly tailored or sufficiently justified by a compelling state interest.72

Simultaneously, in white-collar crime cases, the Roberts Court also ruled in favor of convicted criminal defendants in Skilling, McDonnell, and Kelly.73 Percoco follows this wrongheaded pattern of the Supreme Court giving corrupt individuals a free pass.74 This Part discusses in more detail the negative fallout from the Supreme Court’s white-collar crime cases, from Skilling to Percoco, below.

A. The Fallout from Skilling

In Skilling v. United States, a case about Jeff Skilling, the CEO who ran Enron fraudulently into bankruptcy, the Supreme Court narrowed the definition of honest-services fraud to cover only bribery and kickbacks.75 Winning this Supreme Court case spared Skilling from ten years of his original twenty-four-year prison sentence.76

The Skilling decision was part of the Roberts Courts pattern in white-collar crime decisions of excusing corrupt acts from criminal liability and undoing convictions of individuals for honest-services fraud all over the nation. For example, in Democratic Governor of Alabama Don Siegelman’s case involving bribery by a health care executive named Richard Scrushy and the exchange of $500,000, the Eleventh Circuit ruled that because of Skilling, “[a]s to Siegelman, we . . . reverse as to Counts 8 and 9 [to deprive the public of their right to honest services]and vacate the convictions on these counts.”77

Democratic Mayor of Newark Sharpe James was convicted of a corrupt scheme to allow his girlfriend to purchase cheap city-owned properties.78 The Third Circuit decided that “in light of the Supreme Court’s decision in Skilling, we will reverse the . . . convictions as to James.”79

In December 2009, Republican Majority Leader of New York Senate Joseph L. Bruno was convicted of two counts of honest-services mail fraud for his failure to disclose conflicts of interest while serving as a senator.80 Bruno appealed his conviction to the Second Circuit, citing Skilling. The Second Circuit agreed with Bruno’s argument, stating that, “[i]n light of Skilling, we vacated Bruno’s conviction.”81 The Department of Justice (DOJ) filed a superseding indictment against Bruno to comply with Skilling.82Bruno faced a second trial in 2014, but this time the jury acquitted him on all charges.83 Thus, Skilling invalidated convictions and required prosecutors to retry individuals whom juries had already convicted.

B. The Fallout from McDonnell

In McDonnell v. United States, the Supreme Court saved the former governor of Virginia from any prison time even after his receiving a Rolex, money, a free wedding for his daughter, free clothes for his wife, and a ride in a Ferrari in exchange for political favors.84 Similar to the fallout from the Court’s Skilling decision, the damage done to corruption prosecutions by McDonnell was significant. For example, Democrat Chaka Fattah, Sr., a former member of Congress, was convicted of a complicated scheme involving his run for mayor of Philadelphia, personal use of campaign funds, an illicit loan, misuse of federal funds, and theft from nonprofits.85 He used Governor McDonnell’s win at the Supreme Court to his legal advantage. The Third Circuit agreed with Fattah’s reading of McDonnell and stated, “[w]e hold that the District Court erred in upholding the jury verdict in light of McDonnell, and we will therefore reverse and remand for retrial.”86

Democrat Sheldon Silver was the Speaker of the Assembly in New York when he was convicted on several bribery counts.87 He appealed using McDonnell.88 The Second Circuit agreed with him that “the jury should have been instructed that, to convict on honest services fraud, the Government must prove that, at the time the bribe was accepted, Silver promised to take official action on a specific and focused question or matter as the opportunities to take such action arose.”89 The Second Circuit thus determined that post-McDonnell, “[a]n official who merely accepts a thing of value in an otherwise-legal manner (e.g., client referrals, as permitted under New York law) has not committed a crime” and thereby vacated three of Silver’s criminal counts.90 Silver was retried and convicted again.91 Silver was originally indicted in 2015, but because of his clever use of the Supreme Court’s pro-corruption decisions discussed here, he did not see the inside of prison until 2020.92 Arguably, this five-year saga shows the prosecutorial and judicial resources that have been squandered to put one corrupt politician behind bars.

Republican Dean Skelos was the on-again-off-again New York Senate Majority Leader between 2008 and 2015. He was indicted in 2015. Following a jury trial in 2015, Skelos and his son, Adam, were convicted of Hobbs Act conspiracy, Hobbs Act extortion, honest-services wire fraud, conspiracy and federal program bribery.93 They appealed their convictions to the Second Circuit.94 The appeals court agreed that, applying McDonnell to the case, the jury instruction on an “official act” was too expansive, and vacated the convictions.95 Dean Skelos was retried. He argued in 2018 that his indictment should be dismissed because the grand jury was not instructed properly under McDonnell.96 The judge overseeing his case denied this request,97 and on July 17, 2018, Skelos and his son were convicted for a second time.98 Again, instead of one trial, two trials were needed before the Skelos pair were brought to justice.

C. The Fallout from Kelly

In Kelly v. United States, the Supreme Court spared Bridget Anne Kelly—the woman behind the Bridgegate scandal in New Jersey where the George Washington Bridge was purposefully clogged with traffic as political retribution against the Mayor of Fort Lee—from the prison term a jury thought she deserved.99 The Kelly case is far more recent, as it was decided in 2020.100 Nonetheless, criminal defendants are already putting it to work.101 For example, Mary Elgin was the elected Trustee of Calumet Township, Indiana102 and Ethel Shelton was her administrative assistant.103 They were convicted of wire fraud and honest-services crimes related to their misuse of the Trustee office for nonofficial business including conducting election work and selling tickets to raise campaign funds.104 Shelton challenged her conviction under Kelly.105 The Seventh Circuit agreed that, “Kelly made clear that employee salaries that were the byproduct of a fraudulent scheme could not support an honest services charge. In the ticket-selling kickback scheme, employee labor was not the object of the scheme; it was the byproduct of running the scheme.”106And thus, the Seventh Circuit reversed Shelton’s convictions.107

Finally, in Ciminelli,the Supreme Court itself built on Kelly. Specifically, in Ciminelli, the Court goes further down the path of exonerating an individual from a federal prosecution of corrupt behavior at the state level. It criticized and reversed the Second Circuit for “affirm[ing] federal convictions regulating the ethics (or lack thereof) of state employees and contractors—despite our admonition that ‘[f]ederal prosecutors may not use property fraud statutes to set standards of disclosure and good government for state and local officials.’”108 Kelly, like McDonnell and Skilling before it, exonerated those who abused government positions of power.

D. The Fallout from Percoco

The Supreme Court cited Percoco and Ciminelli when vacating the convictions of two other men, Steven Aiello and Joseph Gerardi, who were involved in the Buffalo Billion scandal.109 Other criminal defendants are already citing these two cases in the hopes that they will result in exonerations. For instance, in 2023, the Republican former Speaker of the House in Ohio, Larry Householder, and his codefendant Matthew Borges, the former chair of the Ohio GOP, were convicted of conspiracy in a RICO bribery case involving at least sixty million dollars in bribes from a company called FirstEnergy.110 Perhaps this outcome was inevitable given DOJ’s prosecutors were “armed with guilty pleas from accomplices, implicating texts, phone recordings, bank statements, and a 49-page mea culpa from . . . FirstEnergy—which admitted to funding the scheme in exchange for a $1.3 billion energy bailout bill meant to support Ohio’s two struggling nuclear power plants.”111 Borges is already trying to use Ciminelli and Percoco to challenge his conviction.112

Borges is not alone, as other convicted defendants are also citing Percoco in their appeals.113 Disgraced Democratic lawyer Michael Avenatti, who once represented Stormy Daniels against Donald Trump, has tried to use Percoco to vacate his fraud conviction.114 And Democratic mega-donor Sam Bankman-Fried, who has been charged with making $100 million in illegal campaign contributions, among other crimes, tried to use Ciminelli and Percoco to get several of his federal charges dropped.115 One district court has vacated the convictions of defendants in a Fédération Internationale de Football Association (“FIFA”) bribery case citing Percoco.116 In addition, the Eleventh Circuit already cited Percoco and Ciminelli when exonerating a defendant from criminal contempt.117

Finally, Percoco could be used in civil litigation to try to further unravel political-corruption laws such as two-year cooling off periods before ex-lawmakers can become lobbyists.118 Overall, Percoco fits the Roberts Court’s pattern of moving the goal posts in corruption cases to the detriment of prosecutors and the public who both want less vice in governance.

III. the unspeakable thing unspoken: trump

Toni Morrison wrote in her essay Unspeakable Things Unspoken that “certain absences . . . are so stressed, so ornate, so planned, they call attention to themselves.”119 Morrison was discussing the nearly palpable absence of chattel slavery in canonical American literature like Moby-Dick on the eve of the Civil War, when the nation was literally tearing itself apart over this seminal legal and moral issue. Morrison’s framework provides a useful way to realize what is missing from a modern text. While an entirely different context (Morrison’s was fiction; while the Supreme Court’s is fact), in the Supreme Court’s 2023 decision in Percoco, there is a similar unspeakable thing unspoken: namely, the corrupt actions of then-President Trump in attempting to subvert the 2020 election.120

On the one hand, having no mention in Percoco of Trump or the wide wake of his legal problems, including his participation in January 6, makes perfect sense. Obviously, Percoco was the campaign manager of then-Democratic Governor of New York Andrew Cuomo, and his conviction has nothing to do with Republican former President Donald Trump.Percoco’s actions were in 2014. January 6 was seven years later. But on the other hand, just as slavery was inexplicably missing from books written at a time when slavery was the central legal question of the day, there is a strange and palpable absence from Percoco of consideration of how this case exonerating a powerful campaign manager’s acts of political corruption could facilitate more corrupt actions by the politically powerful like Donald Trump, as well as his past and present campaign managers, especially after the violence of January 6.121 Such a contextualizing point could have been made in a dissent or a distinguishing concurrence, but in Percoco the win was regrettably 9-0, with a concurrence from Justices Gorsuch and Thomas that is even more hostile to the concept of honest-services fraud than the majority opinion.122 What would have been laudable is if a single Justice had acknowledged that American democracy is in a fragile state post-January 6 and had affirmed that the Supreme Court would do all it could in the future to enforce public-corruption laws to protect the democratic process as well as the rule of law. The Court’s silence on these topics will predictably embolden the worst present and future offenders.

The Roberts Court would not have been out of character to have taken cognizance of the larger political context in their Percoco decision. In fact, the Supreme Court has a long history of taking judicial notice of all sorts of social, political, and economic conditions when it wishes to do so.123 As the Court explained back in 1875, “Courts will take notice of whatever is generally known within the limits of their jurisdiction.”124 The Court went on to elaborate that in the sphere of politics, “[f]acts of universal notoriety need not be proved. . . . In this country, such [judicial] notice is taken of the appointment of members of the cabinet [and] the election and resignations of senators.”125

The Court took judicial notice of the military build-up during the Cold War.126 The Court has likewise taken judicial notice of the impact of racism and sexism.127 And the Court has taken judicial notice of the modus operandi of the Ku Klux Klan.128 There have been times when the Court has taken judicial notice of a “fact” that later turned out to be factually wrong like its—in retrospect—poor assessment of the health dangers of tobacco.129 The Court has taken judicial notice of the impact of multiple wars,130 including World War I, World War II, and the Civil War,131 as well as the Christmas Day pardon by President Andrew Johnson of all Confederates who fought in the Civil War.132 The judicial notice of the Civil War and its aftermath is particularly relevant to analysis of the January 6 insurrection as Congress did not declare war in the Civil War, and yet the Court used its common sense to take judicial notice of the obvious American-on-American sectarian violence.133

Moreover, the Supreme Court takes judicial notice of political realities in election cases all the time. In Richardson v. McChesney, the Court took judicial notice that Congressional elections had taken place using a particular appointment map.134 In Meyer v. Grant, the Court took judicial notice of why signature gathering for an election is paid work.135 In Crawford v. Marion County Election Board, the Supreme Court took judicial notice of the negative impacts voter-identification laws would have on certain citizens and upheld the voter-identification law in question despite this.136 In McCarthy v. Briscoe, the Court took judicial notice of the seriousness of Eugene McCarthy’s candidacy and ordered his name to appear on a Texas ballot.137 And several members of the Court found that the partisan impact of America’s two-party political system, wherein most of the nation’s citizens are wedded to either the Democratic or the Republican Parties, was a matter of common knowledge.138

Of particular relevance is Luther v. Borden, a case about an insurrection in Rhode Island, in which the Court concluded that once a government established its authority in the state, the Supreme Court would take judicial notice of that power.139 (Other courts have also had to deal with ruling on insurrections, as the Circuit Court of Pennsylvania did when considering the Whiskey Rebellion.)140

Members of the Court were also cognizant of the impact of the House of Representative’s impeachment proceedings against President Richard Nixon when considering the interpretation of the Presidential Recording and Materials Preservation Act in Nixon v. Administrator of General Services.141 As Nixon-appointee Justice Powell wrote in his concurrence in this case, “Congress legitimately could conclude that . . . the recommendation of impeachment and the resignation of President Nixon[] might lead to destruction of those of the former President’s papers that would be most likely to assure public understanding of the unprecedented events that led to the premature termination of the Nixon administration.”142

Ford-appointee Justice Stevens was even more pointed in his concurrence in Nixon, noting that

Like the Court . . . I am persuaded that “appellant [Richard Nixon] constituted a legitimate class of one . . . .” . . . Appellant resigned his office under unique circumstances and accepted a pardon for any offenses committed while in office. By so doing, he placed himself in a different class from all other Presidents. Even though unmentioned, it would be unrealistic to assume that historic facts of this consequence did not affect the legislative decision. . . . If I did not consider it appropriate to take judicial notice of those facts, I would be unwilling to uphold the power of Congress to enact special legislation directed only at one former President at a time when his popularity was at its nadir.143

Nixon demonstrates that Supreme Court Justices can consider recent, and even politically divisive, events when they so desire. The present Court could have similarly taken judicial notice of Trump’s two impeachments, including one for his actions on January 6.

Arguably the Court in Percoco already took judicial notice of the fact that “[f]rom time immemorial, there have been éminence grises, individuals who lacked any formal government position but nevertheless exercised very strong influence over government decisions. Some of these individuals have been reviled; others have been respected as wise counselors.”144 However, the Court provided no citation for this assertion. The failure of the Court, or even a single Justice in a concurrence or dissent, to take judicial notice of the fact that Trump was impeached twice by the House of Representatives for trying to get a foreign nation to illegally interfere in the 2020 election—the second time for January 6, 2021—or of the damage these actions have engendered, has created a significant risk that future corrupt political behavior will expand and, worse, that it will go unpunished.145 As will be discussed below, Trump and some of his inner circle of fundraisers have already drawn the interest of state and federal prosecutors. This group may try to use Percoco to their legal advantage in ongoing and future criminal cases.

IV. the risk for future campaign managers and former president trump

What happens when the Supreme Court fails to take judicial notice of contemporary political corruption? The nation gets decisions like Percoco, which make some strains of corruption nearly consequence-free and seem as if they are written in some strange, disembodied void where modern political realities do not intrude.146

The impact of Percoco (and Ciminelli for that matter) is unlikely to be limited to honest-services-fraud cases or even bribery cases.147 Just like with Percoco’s predecessors Skilling, McDonnell, and Kelly, criminal defendants facing all sorts of prosecutions will claim that Percoco exonerates them or gives them the opportunity for a new trial. As lawyers at Sullivan & Cromwell wrote after Percoco and Ciminelli, “[t]he Court has tended to narrowly reject the governments’ aggressive theory of the day while declining to provide broader interpretive guidance.”148 This lack of guidance will encourage convicted criminals and accused defendants alike to cite Percoco hoping it will operate as a get-out-of-jail-free card.

Percoco is only a few months old, and this is already happening. As alluded to above, Matt Borges, ex-chair of the Ohio Republican Party, is trying to use Percoco to avoid a federal RICO conviction.149 Democratic donor Sam Bankman-Fried tried to use Percoco to avoid charges of bank fraud and securities fraud.150 Disbarred lawyer Michael Avenatti tried, and so far has failed, to use Percoco to avoid the consequences of defrauding a legal client.151 Citing Percoco worked for defendants in a FIFA bribery case and in a criminal contempt case.152

A. Campaign Managers and Fundraisers

Is there any real risk that other campaign managers might take Percoco as an excuse to evade criminal liability or to act corruptly? In a word, yes. For one, some campaign managers are crooks.153 And at the presidential campaign level, two campaign managers from Trump’s 2016 campaign faced serious criminal trouble: Paul Manafort and Steve Bannon. Manafort was convicted of filing false tax returns, bank fraud, and failing to disclose a foreign bank account.154 He also pled guilty to obstruction of justice for tampering with witnesses in the Robert Mueller investigation into Russian interference in the 2016 election.155 Bannon was indicted for federal wire fraud in 2020.156 Additionally, Elliot Broidy, who was a major fundraiser for Trump’s 2016 campaign and was the deputy finance chair for the Republican National Committee (RNC) after Trump’s election, was convicted of conspiring to violate the Foreign Agent Registration Act.157 President Trump ultimately pardoned all three men: Manafort, Bannon, and Broidy.158 As the Supreme Court has recognized, all three men, by accepting their pardons, acknowledged their guilt regarding their respective crimes.159

However, there have been subsequent charges against Bannon. He was later indicted by the Manhattan District Attorney’s Office in 2022 for allegedly defrauding individuals to pay for a private border wall that was never built.160 That criminal case is ongoing, with a trial date set for May 2024.161 Bannon was also convicted in 2022 of contempt of Congress for refusing to appear for a deposition and for refusing to produce documents in response to a subpoena from the January 6 Select Committee.162 Bannon has yet to be charged by the Special Counsel, nor does he appear to be listed as an unindicted coconspirator in Trump’s January 6 indictment.163 But there are open questions about Bannon’s actions around January 6.164 Thus, the idea that campaign managers cannot get into deeply corrupt (or otherwise criminal) activity is disproven by Trump’s recent former fundraisers and campaign managers.

Presently, while candidate Trump has not named a “campaign manager” for his 2024 presidential campaign, the campaign is being run by four senior advisors: Brian Jack, Chris LaCivita, Jason Miller, and Susie Wiles, who is also the CEO of the Save America PAC.165 In 2022, federal prosecutors were reportedly investigating the creation and expenditures of the Save America PAC, which was formed shortly after Trump’s 2020 electoral loss.166 However, public reporting indicates that the Special Counsel has withdrawn subpoenas seeking information from Save America and the Trump campaign.167 So perhaps that investigation has gone cold.

And, of course, the risk of corruption isn’t limited to Trump’s campaign managers. There are eleven governor races, ten attorney general races, thirty-three U.S. Senate seats, all 435 House seats, thousands of local offices, and the presidency up for grabs in 2024.168 Each candidate for these offices will likely have a campaign manager as will candidates for many local offices. In the past, campaign managers for congressional and presidential candidates have also run afoul of the law.169 While most campaign managers are honest people, the temptation for those few dishonest campaign managers to take advantage of opportunities to enrich themselves by selling access to an incumbent is higher after Percoco.

B. Defendant Trump

Finally, there is the matter of Donald Trump. During his first impeachment for seeking damaging information about Joe Biden from Ukraine, the House Judiciary Committee concluded that Trump had violated the prohibition on honest-services fraud.170 As the Committee explained:

[I]n addition to committing the crime of bribery, President Trump knowingly and willfully orchestrated a scheme to defraud the American people of his honest services as President of the United States. In doing so, he betrayed his position of trust and the duty he owed the citizenry to be an honest fiduciary of their trust.171

Specifically, the Committee found that

President Trump conditioned specific “official acts”—the provision of military and security assistance and a White House meeting—on President Zelensky announcing investigations that benefitted him personally, while harming national interests. In doing so, President Trump willfully set out to defraud the American people, through bribery, of his “honest services.”172

Trump was not prosecuted for honest-services fraud in 2019 for his actions with Ukraine, in part because he was the sitting president and DOJ has a long-standing policy that sitting presidents cannot be prosecuted.173 Nor has he been charged with honest-services fraud after exiting office.

The Judiciary Committee report for Trump’s second impeachment was written in just six days and does not reference honest-services fraud, but it did accuse Trump of the more serious crime of inciting an insurrection.174 The final report of the January 6 Select Committee made a criminal referral for Trump to DOJ on four possible federal crimes: obstruction of an official proceeding (18 U.S.C. § 1512(c)); conspiracy to defraud the United States (18 U.S.C. § 371); conspiracy to make a false statement (18 U.S.C. §§ 371, 1001); and inciting, assisting or aiding and comforting an insurrection (18 U.S.C. § 2383).175 And the Select Committee raised the possibility that, depending on the evidence that DOJ finds, Trump could have also run afoul of the law criminalizing seditious conspiracy (18 U.S.C. § 2384). Jack Smith indicted Trump on 18 U.S.C. § 371, 18 U.S.C. § 1512(k), 18 U.S.C. §§ 1512(c)(2), 2, as well as 18 U.S.C. § 241 (Conspiracy Against Rights).176

Only time will tell what Trump’s lawyers will rely on for a defense. Because of his status as a former president, Trump’s legal team is likely to appeal any conviction all the way to the Supreme Court. If this happens, I predict that his lawyers are likely to throw corruption-narrowing cases like Randall, Davis, WRTL II, Citizens United, Bennett, and McCutcheon, and corruption-excusing cases like Skilling, McDonnell, Kelly, and Percoco back in the Supreme Court’s face to assert that he should be exonerated, just as Borges, Bankman-Fried, and Avenatti have already argued.


As explained above, Percoco continues the Roberts Court’s pro-corruption trajectory at a time when the country can least afford to go soft on corruption. The Supreme Court would have better served the nation by taking judicial notice of the post-January 6 reality in which it decided Percoco. And depressingly, Percoco may well be used by former President Donald Trump or his campaign managers to evade the legal consequences related to January 6.

One final strange coincidence may indicate that I am being too pessimistic in predicting the prospect of Trump circumventing criminal consequences: prosecutors in Governor Bob McDonnell’s corruption case included Jack Smith, who was then-Chief of the Criminal Division’s Public Integrity Section at DOJ, and his then-Deputy Chief David V. Harbach II.177 Today, Harbach is on Jack Smith’s Special Counsel team investigating Trump for January 6.178 So if any lawyers might know how to navigate the minefield that the Supreme Court has left for prosecutors in this troubling line of pro-corruption cases including Percoco, it is the Special Counsel and his team who are, at the time of writing, prosecuting former President Donald Trump in Florida and Washington, D.C.179 What’s more troubling is the possibility that the Special Counsel did not charge Trump with honest-services fraud in his January 6 indictment, and apparently withdrew his subpoenas seeking information from Trump’s Save America PAC and the Trump campaign, because of the utter hash that the Roberts Court has made of this federal law in cases from Skilling to Percoco.180 Certainly, Trump is not the only criminal defendant that might avail himself of Percoco. The Skilling-through-Percoco lax-on-corruption precedents are available to any white-collar criminal, public or private, who can try to use these cases for their advantage and to the detriment of our democracy and the rule of law.

Professor of Law, Stetson University College of Law, Fellow, Brennan Center for Justice, NYU School of Law. I would like to thank my research assistants Rebecca Doloski, Jeremy Haas, Hannah Klonowski, Sierra Luther, and Colin Sullivan, as well as Stetson librarians Sally Waters and Kristen Moore for their help in researching this Essay. I also thank Stetson University College of Law for the generous faculty scholarship grant which allowed me to write this Essay.