Illinois Cases Offer SCOTUS Chance to Redefine Bribery Law Again

The “Velvet Hammer” stood before his sentencing judge in June and gave a statement worthy of his reputation: Deliberate, calm, and painstakingly careful not to cross the line into an admission of guilt.

“I tried to do my best to serve the people of the state of Illinois,” said Michael Madigan (D), whose tenure as the state’s Speaker of the House set a nationwide record. “I am not perfect.”

His corruption trial was over, but his words made clear he knew there would be more fights ahead. And since the hammer came down on him—seven and a half years in prison—he has shown a willingness to take his case as far as he can.

That means testing the US Supreme Court’s 2024 decision in Snyder v. United States, which held that a federal bribery statute, referred to as 666, criminalizes only bribes, not gratuities.

The Supreme Court hasn’t agreed to hear Madigan’s appeal; in fact, it hasn’t yet been asked. But that’s clearly where he’s aiming. Madigan has hired an appellate team including prolific high-court litigator Lisa Blatt, who with her colleagues last year persuaded the justices to shorten the reach of the bribery statute.

“I think the fact that they brought in the team that had success with the Supreme Court in the Snyder case is kind of an indication that Madigan intends to take this as far as he can go,” said Mark Chutkow, a former federal prosecutor now in private practice at Dykema Gossett.

Madigan’s charges, alongside the indictment of four utility insiders accused of bribing him, represented the pinnacle of Chicago’s biggest corruption investigation in years.

But fast-moving developments in case law have already shaved down the convictions of the “ComEd Four,” and forthcoming appeals could have real consequences for corruption cases.

Madigan in particular has stepped into a live-wire debate on how to define “corruptly,” a word that is prominently featured in 666.

“I think it’s absolutely ripe for us to get a more specific, concrete ruling on the definition of ‘corruptly’” from the Supreme Court, said Nancy DePodesta, a former federal prosecutor now at Taft Stettinius & Hollister.

‘Corruptly’ Controversy

Strategically minded with a reputation for playing his cards close, Madigan maintained power over decades of changing political tides and shifting demographics in his district on Chicago’s Southwest Side.

The cracks started to show as federal agents raided his associates’ offices and grew deeper when the “ComEd Four” indictment was handed down in 2020. That indictment’s “Public Official A,” the target of the utility insiders’ alleged bribery scheme, was the speaker himself.

He resigned his seat in 2021, and the next year was hit with bombshell charges of his own.

Madigan and Michael McClain—a longtime lobbyist who also was the lead defendant in the ComEd Four case—were accused of operating like a criminal enterprise.

Their four-month trial ended in a split verdict. Jurors deadlocked on all of McClain’s charges and many of Madigan’s, including the headline-grabbing racketeering count. Madigan was acquitted on several charges. He was convicted of 10 counts, including conspiracy, wire fraud, and bribery.

Those bribery convictions will likely be a highlight of Madigan’s appeal.

Madigan’s appellate brief hasn’t yet been filed, but his unsuccessful motion to stay out of custody pending appeal offers a preview of his likely arguments. And the “corruptly” debate is front and center: Madigan attorneys say jurors should have been told that, in order to convict, they needed to find that Madigan acted with “consciousness of wrongdoing.”

The appeal is “definitely an avenue for the defense to try to further narrow the scope of the corruption statutes,” Chutkow said. “Because ‘corruptly’ is kind of a vague term. And the Supreme Court doesn’t like vague terms when it comes to criminal law.”

DePodesta noted that in ruling on a Madigan post-trial motion, Judge John Robert Blakey of the US District Court for the Northern District of Illinois offered a lengthy analysis of the “corruptly” question—likely knowing higher courts would be watching.

“I think everybody was keenly aware of where this could be headed,” DePodesta said.

‘ComEd Four’

The ComEd Four have taken a twistier path. All the defendants were convicted of 666 bribery, conspiracy and falsifying records in a scheme to illegally influence Madigan. Rather than simply putting money in the speaker’s pocket, prosecutors said, they hired Madigan associates as do-nothing subcontractors in an effort to curry favor.

But earlier this year, Northern District of Illinois Judge Manish Shah threw out the bribery convictions, finding there was evidence of bribery but the jury instructions were flawed in light of Snyder.

Left standing were conspiracy and the books-and-records violations, which were brought under the Foreign Corrupt Practices Act.

Appellate briefs and motions for bond pending appeal had not yet been filed in the ComEd matter as of Friday afternoon. But ex-utility CEO Anne Pramaggiore recently hired Paul Clement, a “conservative superstar” with a track record of Supreme Court success. And last month, after she was sentenced to two years in prison, she released a statement referencing the Trump administration’s new stance on the FCPA.

The ComEd Four defendants didn’t get the Department of Justice to reconsider their FCPA charges. But the courts might be more amenable, Chutkow said.

Chutkow expects the defense to argue that using an FCPA statute “for what is, in essence, a purely domestic corruption allegation involving a domestic company is stretching the purpose of the FCPA beyond what it was intended to do.”

For years the high court has narrowed the way prosecutors can handle corruption matters, and recently that trend has only ramped up, DePodesta said, noting that practitioners can benefit from specificity.

“In advising clients and trying cases, you need to know: what are the rules, what is and what is not OK, what is unlawful, what is perhaps approaching the line but not actually crossing the line,” she said.