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Speaker 1: A federal appeals court rebuked the Boston U S Attorney

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Speaker 1: and throughout three convictions that were the signature political convictions

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Speaker 1: of her term. In its decision, the First Circuit Court

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Speaker 1: of Appeals said that federal prosecutors overstepped their bounds and

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Speaker 1: using federal criminal statutes to police the hiring practices of

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Speaker 1: Massachusetts state officials. Former State Probation Commissioner John O'Brien and

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Speaker 1: two former deputies were convicted of racketeering for running a

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Speaker 1: sham system to make it appear candidates were being hired

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Speaker 1: for jobs based on merit, when in fact they were

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Speaker 1: hired because powerful state lawmakers sponsored them. After the politically

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Speaker 1: charged forty seven day trial, Boston U S Attorney Carmen

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Speaker 1: Ortiz said the case had exposed a pervasively dysfunctional system.

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Speaker 1: The system demoralized hardworking, qualified employees, clearly preventing the department

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Speaker 1: from working and operating at its optimal best. But the

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Speaker 1: Circuit court said that while the actions the defendants may

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Speaker 1: be distasteful and even contrary to Massachusetts laws, prosecutors failed

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Speaker 1: to prove a scheme to favor politically connected job candidates

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Speaker 1: was a federal crime. Our guests our former federal prosecutor

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Speaker 1: Robert Mintz, the head of the white collar and government

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Speaker 1: investigations practice at McCarter and English, and Jeffrey bellan professor

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Speaker 1: at William and Mary Law School, Bob. The court agreed

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Speaker 1: the defendants misran the Probation Department and made efforts to

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Speaker 1: conceal the patronage hiring system, but prosecutors didn't prove a

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Speaker 1: direct link to a benefit. Explain the court's reasoning short,

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Speaker 1: you and well, as you said earlier, the court noted

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Speaker 1: that the conduct that these defendants were charged with was

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Speaker 1: clearly unappealing and clearly bad conduct that they misran the department.

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Speaker 1: But the real question uh for the First Circuit judges

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Speaker 1: was whether or not this bad conduct amounted to criminal conduct.

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Speaker 1: And in this particular case, they found that the government's

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Speaker 1: evidence as to the bad conduct and the gratuities that

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Speaker 1: were allegedly accepted by the defendants weren't adequately linked to

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Speaker 1: some official act. In this case, the the gratuity or

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Speaker 1: the thing of substantial value were jobs, jobs that were

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Speaker 1: being offered by the Probation Department to politicians, and those

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Speaker 1: had to be tied to some specific act. Subsequently carried

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Speaker 1: out by those politicians. And here the court throughout the

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Speaker 1: case because it found that there was not a sufficient

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Speaker 1: linkage here that they may have been acts that were

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Speaker 1: subsequently taken by these politicians, but they were not clearly

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Speaker 1: proven to be tied to the jobs that were given

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Speaker 1: by the probation Department. Jeff, how big a rebuke is

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Speaker 1: this to federal prosecutors. I think it's a significant rebuke.

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Speaker 1: I would I would draw a straight line between this

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Speaker 1: case and the McDonald versus U. S. Supreme Court case

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Speaker 1: that recently came down where the U. S. Supreme Court,

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Speaker 1: I think again rebuked federal prosecutors for are reaching too far,

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Speaker 1: and you can you can analogize to this case so

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Speaker 1: that there are distinctions, but there is a similarity in

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Speaker 1: that both in the McDonald case and here you get

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Speaker 1: the sense that the federal prosecutors were coming in to

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Speaker 1: clean up a mess that the states we're not adequately

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Speaker 1: policing themselves. In the in the minds of the federal prosecutors,

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Speaker 1: something that looked like corruption, but that didn't seem to

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Speaker 1: be either taken seriously by the States or wasn't uh.

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Speaker 1: In the Virginia case, wasn't something you could prosecute under

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Speaker 1: state law. And the courts are now saying increasingly that, Okay,

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Speaker 1: if if the federal prosecutors gonna go into a state

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Speaker 1: and try to clean up what looks like a corruption mess,

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Speaker 1: they're going to be held to very high standards. Uh

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Speaker 1: And and just as Bob described, the standards are going

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Speaker 1: to require something that looks very much like a stereotypical

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Speaker 1: bribe and not like kind of patronage that was going

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Speaker 1: on here Bob. Prosecutors alleged at trial that O'Brien's probation

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Speaker 1: department received general budget increases boosting his political clout. Is

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Speaker 1: political patronage now safe from federal prosecutions because of the

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Speaker 1: McDonald decision? Well, I don't think it's necessarily safe, but

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Speaker 1: I think you have to show something more than what

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Speaker 1: politicians would describe as the typical type of horse trading

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Speaker 1: that goes on within the confines of the political process.

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Speaker 1: And in the McDonald case, for example, the question was

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Speaker 1: whether certain gifts that were given to the then governor

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Speaker 1: of Virginia were given in exchange for an official act

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Speaker 1: by the governor, and the Supreme Court said that merely

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Speaker 1: setting up meetings for an outside businessman on giving him

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Speaker 1: access to certain people within the government did not amount

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Speaker 1: to an official act because there was no evidence that

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Speaker 1: the governor had tried to influence the outcome of decisions

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Speaker 1: by state officials. The the holding here is very similar

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Speaker 1: in that you have a situation where the probation department

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Speaker 1: is trying to curry saber with politicians by circumventing the

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Speaker 1: system clearly not following the protocols that are set up

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Speaker 1: for a merit based hiring and turning it into a

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Speaker 1: complete political patronage malt. But that was not enough because

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Speaker 1: the prosecutors could not show that that it was done

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Speaker 1: in exchange for a specific act being carried out by politicians.

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Speaker 1: So it significantly raises the bar for proving political corruption

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Speaker 1: in cases where the conduct really amounts to more patronage

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Speaker 1: and bad government as opposed to criminal conduct. Jeff, we

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Speaker 1: only have about thirty seconds. Do you think this is

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Speaker 1: going to give prosecutors as much pause as it appears

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Speaker 1: you and Bob think they should have. Well, I would

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Speaker 1: say that this this case was pushing the boundaries as

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Speaker 1: it was, and then when the McDonald case came down

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Speaker 1: that was kind of the death knew for the swan.

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Speaker 1: So you know, I think that there are cases where

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Speaker 1: either the the defendants are not as sophisticated or they're

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Speaker 1: a little more sloppy than they were here, and then

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Speaker 1: all the other cases that are just more egregious, and

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Speaker 1: I think the federal prosecutors can still go after those cases.

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Speaker 1: But as Bob says, and as this case, I guess

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Speaker 1: a little bit of sophistication and in hiding the quid

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Speaker 1: pro quo is going to get you further than it

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Speaker 1: ever did. In terms of defending against federal federal public

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Speaker 1: corruption charges. We're talking about a case in Boston in

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Speaker 1: which the First Circuit Court of Appeals reversed the convictions

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Speaker 1: of three former members of the Probation Department, saying that

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Speaker 1: the federal prosecutor had not proven a federal crime and

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Speaker 1: is certainly based on public corruption and the idea that

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Speaker 1: was expressed by the Supreme Court in the former Virginia

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Speaker 1: Governor Bob McDonald's case. We've been talking with former federal