Do P.G. Sittenfeld's Charges Represent Prosecutorial Overreach by a Politicized Trump Justice Department?

"It may be unfortunate that political campaigns in America are financed by the private sector. But accepting contributions from donors (including self-interested businesses) who approve of an elected official’s job performance is not a crime."

P.G. Sittenfeld - PHOTO: CITYBEAT ARCHIVES
Photo: CityBeat Archives
P.G. Sittenfeld

On November 19, Councilman P.G. Sittenfeld became the third Cincinnati City Council member this year to be federally indicted on public corruption charges. What should Cincinnatians make of this string of indictments? Does Cincinnati’s City Council suffer from a “culture of corruption”? Or do these charges represent prosecutorial overreach by a politicized Trump Justice Department?

Let’s look at the facts and the law.

Council member Sittenfeld is charged with soliciting $40,000 in political donations to “deliver the votes” in city council for a downtown real estate development project spearheaded by former Cincinnati Bengals defensive back Chinedum Ndukwe. The payments were drawn in 2018 and 2019 from LLCs controlled by Ndukwe, and were remitted to Sittenfeld’s political action committee (PAC).   

Unlike in most public corruption cases, no one alleges here that any of the $40,000 at issue wound up in Sittenfeld’s pocket — or in anyone else’s. Nor does the indictment allege that the size of these donations exceeds federal campaign contribution limits. Nor, in fact, does the indictment allege that any of the funds were spent unlawfully. Instead, the essence of the charge is that these political donations were “bribes” that caused Sittenfeld to vote in favor of Ndukwe’s project and to lobby his fellow council members to do the same. If these “bribes” had not been paid, the indictment implies, then Sittenfeld would not have voted to approve Ndukwe’s project.

In support of this theory, the indictment quotes conversations between Sittenfeld and Ndukwe that Ndukwe secretly recorded. In one key 2018 conversation, Sittenfeld proclaims that he is "always super pro-development and revitalization, especially of our urban core." This claim is consistent with his public reputation. In this spirit, Sittenfeld tells Ndukwe he supports the present proposal.  He also solicits a political contribution of $20,000, which Ndukwe says he can make. But — at the behest of the FBI — Ndukwe also asks for explicit assurance that in return for the $20,000, “It’s gonna be a yes vote, you know, without a doubt.”

Sittenfeld, however, appears to reject the bait. Instead, Sittenfeld says his support for the project is not linked to the donation. He tells Ndukwe that a quid pro quo would be illegal, and that “obviously nothing can be illegal...and I know that’s not what you are saying either.” To reassure Ndukwe that he will vote in favor of the project no matter whether or not he receives a donation, Sittenfeld reminds the former Bengal that in his seven years on council, Sittenfeld has voted for nearly every downtown development deal that has ever been put in front of him.  

Because Sittenfeld’s political stance is consistently pro-development, it's not surprising that he tends to vote in favor of developments, or that real estate developers contribute to his campaigns. A few blocks from City Hall, Proctor & Gamble operates a PAC that routinely contributes more than $300,000 per year to incumbent legislators who vote in line with P&G's interests. That's much more money than Sittenfeld's PAC received from Ndukwe.

It may be unfortunate that political campaigns in America are financed by the private sector. But accepting contributions from donors (including self-interested businesses) who approve of an elected official’s job performance is not a crime. It’s the way American political campaigns are financed. For that reason, without a clear quid pro quo, the government may be overreaching when it characterizes Ndukwe’s donation as an act of bribery, or Sittenfeld’s solicitation as a criminal act of extortion.

The prosecutorial overreach is starker in the indictment’s treatment of Sittenfeld’s promise to lobby his fellow council members to vote to approve Ndukwe’s project. 

The government characterizes Sittenfeld’s efforts to contact other council members as evidence of “honest services fraud.” But in a 2016 decision that reversed the conviction of Virginia Governor Robert McDonnell, the U.S. Supreme Court unanimously rejected such an expansive interpretation of the “honest services fraud” statute. Instead, the Court held that the statute regulates only “official acts” (such as voting in council) but not “unofficial acts,” such as contacting other public officials on behalf of a constituent.  

Indeed, the McDonnell Court observed that “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.” Accordingly, because the statute did not reach “unofficial acts,” the Supreme Court held that Governor McDonnell could not have committed “honest services fraud” when he contacted several public officials on behalf of a constituent, even though that constituent had just lavished $175,000 in gifts personally upon the governor and his wife. Even as alleged, Sittenfeld’s conduct was nowhere near this egregious.

Similarly, the indictment gilds the lily by noting that Ndukwe personally handed checks to P.G. Sittenfeld, rather than delivering those checks to an intermediary. But no law prohibits an official from receiving a political donation personally if the same donation could lawfully have been delivered to an intermediary. Indeed, elected officials inevitably learn the identities of their large donors either way. The personal interaction between Sittenfeld and Ndukwe is of no legal or practical significance.

The same is true of the DOJ’s emphasis on the role that Sittenfeld’s PAC played in processing the donations. According to the indictment, Sittenfeld told Ndukwe that because few people were aware of Sittenfeld’s low-profile PAC, donations to the PAC would more likely remain anonymous than donations to the “Sittenfeld For Mayor” campaign.  

The apparent effort to keep these donations hidden looks suspicious. But again, there may be more smoke here than fire.

Under federal law, it is not illegal for an elected official to sponsor a “leadership PAC” that accepts large contributions from donors. Nationwide, “leadership PACs” now raise and spend about $50 million per biennium. A “leadership PAC” sponsored by an elected official may not use funds to support that official's own campaign. However, the PAC may fund travel, administrative expenses, consultants, polling and other non-campaign expenses, and may spend money in support of the campaigns of other candidates. 

Importantly, while there is ordinarily some delay in public reporting, donations to “leadership PACs” eventually do become matters of public record. Unlike donors of “dark money” to partisan nonprofit organizations that remain formally unaffiliated with any candidate, donors to candidate-affiliated “leadership PACs” (including Sittenfeld’s) cannot mask their identities for very long.

There is no suggestion in the indictment that Sittenfeld did not adhere to the relevant limits on contributions or expenditures that apply to “leadership PACS,” or that his PAC failed to comply with any of the relevant disclosure requirements. (The government implies that some of Ndukwe’s contributions exceeded amounts permitted under Cincinnati municipal law. But those violations are not formally alleged in the federal indictment.) By suggesting instead that his efforts to avoid publicity were a crime, the indictment again appears to overreach. 

Citizens often are offended by the influence of money in politics, and rightly so. Throughout American history, reformers have sought to enact and strengthen legislation that limits such influence, and that promotes transparency. Some contemporary candidates and public officials (including Sen. Bernie Sanders) refuse to affiliate with any PACs. When casting their own votes, citizens can and should consider how candidates finance their campaigns. Our laws should make it easy for citizens to obtain this information. Our free press should rightly report on it, as it does.

Yet most political candidates today feel the need to raise money in a variety of ways, including from constituents whose own self-interest can influence the decision to donate. For this reason, unless legal lines are bright and narrow, ordinary political fundraising activity can become a trap for unwary officials.

Moreover, public corruption prosecutions can become a powerful tool if wielded arbitrarily, or even for partisan purposes. By charging particular candidates with crimes for raising funds in ways that are common but that the public considers unseemly, prosecutors can make a name for themselves, or can influence elections (as Sittenfeld’s indictment will surely do). 

Citing these “substantial” concerns, the U.S. Supreme Court in McDonnell cautioned that “White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Government’s ‘breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.” In therefore admonishing lower courts to protect officials against overzealous prosecutions under public corruption statutes, the McDonnell Court warned that “a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.”

Every person accused of a crime is entitled the presumption of innocence. In the case of P.G. Sittenfeld’s recent indictment on public corruption charges, this presumption may be particularly strong.

Ken Katkin is a Professor of Law at Chase College of Law Northern Kentucky University, where he teaches Legislation and Constitutional Law.

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