Supreme Court once again strikes blow to DOJ’s fraud theories

The Supreme Court struck yet another blow to the Department of Justice (DOJ) and its public corruption case efforts in two separate unanimous decisions handed down May 11.

In the first case, Percoco v. United States, the central issue addressed the scope of “honest services fraud.” The honest services theory typically holds public officials have a fiduciary duty to provide the “intangible right of honest services” in performing their elected or appointed service to the public. Thus, any scheme to deprive the public of that right—such as accepting a bribe or kickback—might result in the prosecution of honest services fraud.

In Percoco, the defendant was a private citizen with government connections. Joseph Percoco was a former top aide to then-New York Gov. Andrew Cuomo. Percoco had temporarily left his government position to assume a private role as Cuomo’s campaign manager.

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