Fear Not, the Fed Ed Investigation is Alive and Well

I warned you in early May that the United States Supreme Court could soon have some good news for Allentown Mayor Edwin "Fed Ed" Pawlowski. He's the obvious target of a federal investigation into political corruption. While chess pieces around him have fallen, the King is still on the board, defiant and in denial. Yesterday, as was widely expected, the Court of Final Error unanimously invalidated an honest services fraud conviction of Virginia ex-Governor Bob McDonnell. This ruling makes it more difficult to prosecute Fed Ed. But it by no means  ends the case against him, as Fed Ed's mouthpiece is telling anyone who will listen. It has instead halted what White House counsel from Ronald Reagen to Barack Obama have called a  “breathtaking expansion of public-corruption law" that "would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.”

Had the Court invalidated he honest services fraud and federal bribery statutes as unconstitutionally vague, as it was asked to do, that would have ended most political corruption investigations, including the one aimed at Fed Ed. But the Court actually held these statutes are constitutional. It has interpreted the law in a way that avoids the vagueness claim.

McDonnell has by no means been exonerated. Get this. The Court rejected a request to dismiss the case. He and his wife accepted gifts that included a Rolex watch and a shopping spree for designer clothing. There were stays at a donor's vacation home, loans and even more gifts. Their behavior was "distasteful" and "tawdry." and the Court agreed that "it may be worse than that."

All that the Court did is reject a criminal conviction because of faulty jury instructions on what constitutes the "official act" aspect of honest services fraud. He could very easily be retried, but in a prosecution in which the jury gets better instructions on what constitutes an "official act" for purposes of honest services fraud. .

Under the Supreme Court's interpretation, "Setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’” But it could be.

"[T]his is not to say that setting up a meeting, hosting an event, or making a phone call is always an innocent act, or is irrelevant, in cases like this one. If an official sets up a meeting, hosts an event, or makes a phone call on a question or matter that is or could be pending before another official, that could serve as evidence of an agreement to take an official act. A jury could conclude, for example, that the official was attempting to pressure or advise another official on a pending matter. And if the official agreed to exert that pressure or give that advice in exchange for a thing of value, that would be illegal."

From the federal charging documents filed in the Allentown and Reading investigations, there is ample evidence of criminal conduct by Fed Ed, even under a more restrictive definition of what constitutes an "official act."

We know the scheme: [Fed Ed] aspired to win election to a statewide elective office. To achieve this goal and others, [Fed Ed], while still serving as a public official in Allentown, hired and directed certain political operatives (“the campaign operatives”), known to the United States Attorney, to help him raise campaign contributions from donors, including parties who had profited from their dealings with the City of Allentown and who sought favorable treatment from the City of Allentown (“the vendors”). [Fed Ed] also directed certain municipal officials to give preferential treatment to certain of his past and potential political donors.

In 2014 and 2015, [Fed Ed] and others, known to the United States Attorney, knowingly devised and intended to devise a scheme and artifice to defraud and deprive the City of Allentown and its citizens of [Fed Ed]'s honest services through a bribery and kickback scheme, wherein [Fed Ed] sought campaign contributions, including contributions to [Fed Ed]’s federal campaign, in exchange for past, continued, and future official actions that  [Fed Ed] took, attempted to take, and caused and attempted to cause the City of Allentown to take. 

[Fed Ed] directed other public officials to identify for him individuals and entities who had profited from their dealings with the City of Allentown and who sought favorable treatment from the City of Allentown (“the vendors”). [Fed Ed], directly and through subordinates, made clear to certain vendors, including [Jack Rosen], [McTish and Kunkel Engineering], and Ramzi Haddad, that providing [Fed Ed] with campaign contributions was a necessary condition for receiving certain favorable treatment from the City of Allentown.

Disappointed by his poor fundraising in his earlier campaign for statewide office, [Fed Ed] instructed defendant MICHAEL FLECK, [Jack Rosen], [McTish and Kunkel Engineering], [Scott Allinson] Donor #5, Ramzi Haddad, and others that his best chance at winning his party's support as a candidate for the federal office was to maximize the campaign contributions that he received on or before a federal campaign reporting deadline of June 30, 2015.

We know he threatened adverse official action against those who failed to come up with money for his various campaigns:

[Fed Ed] communicated to others, including Allentown officials and defendant MICHAEL FLECK, that the city of Allentown would withhold favorable treatment from certain donors who failed to provide satisfactory campaign contributions to [Fed Ed].

On diverse dates between on or about January 6, 2014, and on or about May 26, 2015, [Fed Ed], Mary Ellen Koval, defendant MICHAEL FLECK, and others met for the purpose of helping [Jack Rosen]'s company receive a "no-bid" contract from the City of Allentown as a reward for [Jack Rosen]'s agreement to raise campaign contributions for [Fed Ed].

Here feds may have a problem, at least isolated by itself. We know that sending a letter, by itself, is not considered official action when directed at boards over which there is no control. Except in Allentown, Fed Ed appointed members of these commissions and boards. .

[Fed Ed] caused and attempted to cause certain municipal staff to take official action favorable to certain actual and potential donors, including defendant RAMZI HADDAD and other donors to [Fed Ed]’s federal campaign.

An outright bribe is still an outright bribe.

During his in-person interactions with defendant RAMZI HADDAD at restaurants, [Fed Ed] directed defendant HADDAD to pay [Fed Ed]’s food and beverage bills

In order to conceal and continue the conspiracy, [Fed Ed] employed countersurveillance maneuvers, including destroying records, conducting sweeps of government offices for electronic surveillance, and procuring disposable “burner phones” that he believed would be difficult for law enforcement to monitor.

Bid rigging is pretty clearly an "official action."

On or about January 8. 2014, [Fed Ed] contacted defendant GARRET STRATHEARN to explain the importance of awarding the 2014 revenue collection contract to [Northeast Revenue Service] and ensure that defendant STRATHEARN would help achieve that result.

On or about May 27, 2014 and again on or about August 14, 2015, in order to conceal and continue the conspiracy, defendant GARRET STRATHEARN made materially false statements to agents of the Federal Bureau of  Investigation who were investigating the conspiracy. For example, defendant STRATHEARN falsely claimed that [Fed Ed] was unaware of  expressing any preference about, let alone having input or involvement in, the award process for the 2014 revenue collection contract when in fact, as STRATHEARN well knew. [Fed Ed] had specifically told him that [Fed Ed] wanted [Northeast Revenue Service] to win the contract and that it was important for STRATHEARN to provide that result for [Fed Ed]'s benefit.

This sounds like official action to me.

On or about August 8, 2014, [Fed Ed] agreed to help [McTish and Kunkel]'s company receive a contract from the City of Allentown as a reward for [McTish and Kunkel]'s agreement to raise campaign contributions for [Fed Ed].

On diverse dates between on or about April 14, 2014, and on or about May 8, 2015, [T and M] met with [Reading Mayor Vaughn Spencer], [Fed Ed], defendant MICHAEL FLECK, and others, known to the United States Attorney, to discuss trading municipal contracts in Allentown and Reading for campaign contributions from a political action committee over which [T and M]'s company had influence and control.

By itself, this is not an "official action."

On or about April 21, 2015,[Fed Ed], acting in his official capacity as an elected official, used the U.S. mails to send a letter of support for a proposal in which Ramzi Haddad had a business interest, in consideration for Haddad's agreement to raise money for [Fed Ed].

If communicated to Donor Scott Allinson, this is extortion. 

Upon hearing that [Scott Allinson] had expressed doubt about [Norris McLaughlin]'s willingness to make future contributions, [Fed Ed] complained "Really! I've given him millions of dollars.. .. Relatively, compared to other law firms, they've given nothing. [Allinson] for sure will get nothing now. ... You know, f--k them! And I'm not gonna award work to [Allinson's] law partner] or anything. Screw it all!"

On or about July 2, 2015, in order to conceal and continue the conspiracy, [Fed Ed] made materially false statements to agents of the Federal Bureau of Investigation who were investigating the conspiracy. For example, [Fed Ed] falsely denied having had any knowledge of, involvement in, or interference with Allentown's RFP process when, as [Fed Ed] well knew, he had taken steps to help award the 2014 revenue collection contract to [Northeast Revenue Service]. 

False statements are still false statements.

On or about July 2, 2015, in order to conceal and continue the conspiracy, [Fed Ed] made materially false statements to FBI agents who were investigating the conspiracy. For example, [Fed Ed] falsely denied knowing whether he had received campaign contributions from [Jack Rosen]’s company or its principals when in fact, two days earlier, as [Fed Ed] well knew, [Jack Rosen] had donated and bundled tens of thousands of dollars in campaign contributions, which were transferred to [Fed Ed]’s federal campaign via interstate wires, including the Internet.