Free Speech Arguments
Presented by the Institute for Free Speech
The Free Speech Arguments Podcast brings you oral arguments from important First Amendment free political speech cases across the country. Find us on Spotify and Apple Podcasts.
Episode 10: U.S. v. Sittenfeld
U.S. v. Sittenfeld, argued before Judges John K. Bush, John B. Nalbandian, Eric E. Murphy in the U.S. Court of Appeals for the Sixth Circuit on May 9, 2024
Statement of the Issues, from the Appellant’s Opening Brief:
1. Whether objectively ambiguous evidence can prove an “explicit” quid pro quo, and whether the concededly ambiguous evidence here sufficed to do so.
2. Whether the Government constructively amended the indictment by relying on a “bribe” different from the one specified in the indictment’s “to wit” clause.
Introduction to the case, from the Appellant’s Opening Brief:
Politicians cannot sell their official powers—not for bags of cash, not for Rolexes or luxury travel, and not even for campaign contributions. But identifying a campaign contribution as a bribe is uniquely fraught, because such contributions are always based on expectations of what the candidate will do in office. Candidates, likewise, know their policies, promises, and pledges will affect their ability to raise funds. All that is not only lawful; it is constitutionally protected. The result is an incredibly fine line: Donating or soliciting based on policy commitments is First Amendment activity, while donating or soliciting in exchange for policy commitments threatens a prison sentence. Articulating that distinction is hard enough; distinguishing the two in practice is even harder. That, in turn, casts a pall of prosecution over our entire political system and deprives officials and citizens alike of fair notice about what conduct is criminal.
Enter the Supreme Court. In McCormick v. United States, 500 U.S. 257 (1991), the Court addressed that problem by holding that the Government must hurdle a distinctly high evidentiary bar when it premises a bribery charge on a campaign donation. In cases involving ordinary, constitutionally insignificant benefits, prosecutors must prove a quid pro quo: that the parties traded benefits for official action. But in the context of campaign contributions, the Government must show the quid pro quo was “explicit”— an unambiguous corrupt bargain. Anything less, the Court warned, would leave every campaign donation the fodder of a bribery charge, and every official at the mercy of a lay jury asked to infer corruption from money in politics….
Alexander “P.G.” Sittenfeld was a rising star on Cincinnati’s City Council, and favorite to become the next mayor. He was known for his pro-development platform, backing every project that came across his desk over ten years in office. The Government engineered a sting to see if he would accept a campaign donation in exchange for supporting a local development project. To maximize the sting’s chances of success, the FBI approached Sittenfeld through one of his longtime existing donors, in connection with a project Sittenfeld had already agreed to support. Yet despite that choreography, Sittenfeld never bit….
The jury acquitted Sittenfeld on most counts, but (inconsistently) convicted on two. Even the district court acknowledged the Government’s evidence was at most “ambiguous,” and could be easily seen as ordinary politics. But the court reasoned that the jury was free to string together some vague phrases and pull an “explicit” exchange out of a hat. Every other court to address this issue, however, has required clear and unambiguous proof of corruption; none has upheld a conviction on a record so thin and ambivalent. Indeed, if this evidence suffices, McCormick has no meaning; prosecutors would be free to conjure a bribery charge against every politician, ushering in a First Amendment Ice Age.
The Government’s failure to satisfy McCormick is the most fundamental legal error. But at minimum this Court should order a new trial, because the Government constructively amended the indictment. It explicitly charged Sittenfeld with bribery based on a donation from one of the undercover agents (“Rob”). But at trial, the Government told the jury it could convict if Sittenfeld engaged in bribery with either Rob or Sittenfeld’s friend, and the jury instructions (over objection) authorized that expansion. Under this Court’s precedent, that shift compels a new trial.
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