INTERVIEW: Going Overbroad

By Reuvain Borchardt

Yaakov Roth, a partner at the Jones Day law firm, spoke with Hamodia after he argued a case before the U.S. Supreme Court late last month for Joe Percoco who was convicted of bribery. Percoco was an aide to former New York Gov. Andrew Cuomo.

Roth, 38, last year made Bloomberg’s list of “40 Under 40” lawyers. A Harvard Law alum, Roth served as Articles Editor for the Harvard Law Review, and graduated summa cum laude in 2007 at just 22 years old. He clerked for Judge Michael Boudin of the First Circuit Court of Appeals (2007-2008) and for Justice Antonin Scalia of the U.S. Supreme Court (2008-2009).

Roth has worked on prominent cases related to issues including public corruption, administrative agency power, federalism, and religious liberties. He has argued more than 20 federal appeals, including three Supreme Court cases. He has been named a “D.C. Rising Star,” a “D.C. Trailblazer,” and a “Litigation Trailblazer” by The National Law Journal; a “Next Generation” leader by The Legal 500; and a “Rising Star” in the appellate space by Law360.

Yaakov and his wife Arielle live with their five children in Washington.

You just argued before the Supreme Court on behalf of Joe Percoco, who was an aide to New York Gov. Andrew Cuomo and was convicted of bribery and honest services fraud for accepting money in return for taking actions to benefit energy company Competitive Power Ventures and Syracuse-based real estate developer COR Development. Based on the justices’ questions during the oral argument, it appears you’re going to win an appeal of the conviction. Tell us about this case.

The prosecution’s argument was that, while Joe was serving as campaign manager for the Cuomo reelection in 2014, he agreed to work for COR Development to help them with labor issues relating to a hotel and parking lot they were building in Syracuse, and that one of the things he allegedly did to help them was call someone in the governor’s office and take the position that they shouldn’t have to enter a certain union agreement. The government argued that the money that he was paid for his consulting while he was campaign manager constituted a bribe.

Our argument was that it can’t be a bribe because he wasn’t in government at the time. He wasn’t an employee of the state, but a private citizen serving as campaign manager. Yes, he had influence in government because of his relationship with the governor and his political role and connections. But that’s no different from any lobbyist who uses their connections and network to advance their client’s interests, and there’s nothing illegal about that.

Typically, an official on a reelection campaign was part of the politician’s administration, they leave the administration to work on the campaign, and then if their candidate wins they go right back into the administration. So, although they do have that influence, if they took the money during that time they were on the campaign, they’re a private citizen and it’s not a bribe?

It’s both taking the money and the actions that they’re taking it for. We agree that if someone took money and said, “When I get back into government, I’ll do this and that,” that would be bribery, because you’re paying the person for use of official power that he will have in the future. But if he’s doing the work and taking the money during the period when he’s not in government, then you’re not paying for official power, because he doesn’t have any.

You won two other big cases at the Supreme Court related to public corruption, both unanimously.

First let’s discuss the “Bridgegate” case from 2020. The Court ruled that, although the defendants acted badly — they arranged this traffic jam on the George Washington Bridge just to punish a political opponent — because they got no money or anything tangible from it, there was no federal crime committed.

There are two main types of federal criminal fraud: one is property fraud, when you lie to get money; and the other is honest services fraud, which the Court has interpreted to mean bribery or kickbacks. There was no bribe or kickback in Bridgegate, so they didn’t charge honest services fraud. They charged it as property fraud. The problem with that was there wasn’t any attempt by the defendants to gain money or property.

The government tried to say that the bridge itself was the property, but of course, the defendants didn’t obtain the bridge. The bridge belongs to the Port Authority; it was just an issue of who was using it and how. The Court agreed with us that that’s not property; it’s essentially the sovereign right of the state to make government decisions. But that’s not the type of property that’s covered by the property fraud statutes.

I guess the only thing they obtained was the pleasure of hurting their political opponent.

Right. And political benefits are not property.

One thing that connects these cases I’ve worked on is the overbreadth problem created by the prosecution’s interpretation. If they’re right, why couldn’t you charge anybody who does something for a political reason — like if you pretend you’re acting for the benefit of the public but really you just want to get reelected or you have some other political motive — with some sort of fraud?

In the Percoco case, for example, if you can charge this, why can’t you go after any lobbyist? Why can’t you go after Trump’s son or Cuomo’s brother or Biden’s son, or any number of other people who have influence but they’re not government officials? That’s really the common thread: the kind of overbroad practical problems with these theories by prosecutors.

So, after the Bridgegate ruling, there’s no way that a government official can be charged with doing anything — regardless of how unethical it may be — to punish a political opponent, as long as they don’t actually get anything tangible in return?

At least under these federal statutes. Lawyers try not to say “no way” or “never” because you’re always interpreting some particular law. You know, there might be some state law that could be violated; I don’t know every law out there. But on federal fraud laws, no.

Politicians sometimes punish political opponents. And they reward political supporters all the time. And anytime you reward one person, you may effectively be harming others.

Exactly. That was one of our main arguments: If you can prosecute this, why not all those others.

And in 2016, there was the famous case of former Virginia governor Bob McDonnell. He accepted money from a company and set up meetings and did other things to help the company, but he did not actually sign any legislation or anything like that. He was convicted of federal charges including honest services fraud. But in his appeal, you argued that the prosecution had used an overbroad interpretation of what constituted an “official act” by McDonnell. And the Supreme Court agreed with your argument, ruling unanimously that McDonnell had not violated these federal criminal statutes.

I worked on the case, and on the briefs filed at the Supreme Court. But I didn’t actually do the oral argument on that one. I was more junior at the time. Noel Francisco, a partner at the firm — who later became Trump’s solicitor general and now has come back to the firm — argued that case at the Supreme Court. 

So the issue there was, what is an “official act” for purposes of bribery laws? And the prosecution’s theory was basically anything you do for anybody is an official act if you’re an official — if you make a call, set up a meeting, go to an event, you give someone an invitation to a party, anything. And we said, that can’t be right, because, like you said, people do things to help their supporters all the time, and you’d have a potential bribery case every time anyone does anything like that to help a constituent. That’s not the way the law is supposed to work. It’s supposed to be that you can’t sell your office, you can’t sell your power. It has to be the things that actually have a connection to use of government power in some way. Of course, it doesn’t have to be just signing legislation. If you’re hiring somebody or you’re giving a contract or coming out with some rule or exception or a waiver, you know, something that’s a real government decision has to be at issue, not just everyday routine courtesies.

Would it matter if the government official made those calls from his government office on government time, so to speak?

When is the president off duty? The concept of off-hours doesn’t exist. If you understand it that way, then everything is going to be covered, and you’re giving the prosecutors too much power to prosecute public officials and politicians they don’t like, which leads to all sorts of problems with criminalization of politics.

Would it matter if, say, he uses a government phone versus his personal cellphone?

No. The use of government resources in that kind of incidental way isn’t an official action under the statute the way the Court interpreted it.

McDonnell was governor when he accepted the money. Even if he did not take an official act like signing legislation or rigging a contract, he definitely had a personal gain here. Is there no federal prohibition on using an office for personal gain?

To my knowledge, there’s no federal criminal law that’s that broad. Because there are just a million examples that you can come up with where it happens all the time, which is why we don’t read the statutes that broadly, because it would cover too much.

Ethics rules and regulations definitely speak to this. There are a lot of rules about when you can use government property for campaign purposes, for example. You’re not supposed to do that, but sometimes it’s unavoidable. So maybe if it’s incidental; there are rules about this on the federal and state levels. But they’re not crimes, because that’s not an appropriate way to handle that sort of issue.

If there’s a violation of these rules, they may just fine the campaign.

Exactly. Like Hatch Act stuff. [The Hatch Act limits certain political activities of federal employees.-Ed.]

Like Cuomo wrote a book while in office, and there was some discussion about whether the state ethics commission was going to allow him to keep the proceeds from the book.

Exactly. But they’re not going to put him in jail for that.

After the McDonnell and Bridgegate cases, and the Percoco case, which it appears you will win, what’s the minimum a government official would have to do in order to be prosecuted on federal bribery charges?

The real test has always been trading official power for private gain. Courts have taken it too far in certain cases, which is why we’ve gotten those reversed. But the key element has always been a quid pro quo: you give something in exchange for something else. The thing you’re giving is an official exercise of power, and the thing you’re getting is anything of value — it can be a gift, it can be money, it can even be a campaign donation in some cases. So there are still plenty of corruption cases being prosecuted. I wouldn’t be too concerned about it.

In addition to the Percoco and Bridgegate cases, you argued one other case before the Supreme Court, on a different subject: West Virginia v. EPA, a big case related to the power of administrative agencies, decided last June. The Court ruled 6-3 for your client. Tell us about that case.

The Supreme Court expounded on what they call the “major questions doctrine,” which is that if a statute in which Congress gives power to an administrative agency is ambiguous, the courts are not going to read it to allow the agency to make major economic or political decisions; for that you need clear language from Congress.

This came up in the context of climate-change regulations of coal-fired electric plants. The case was about the Obama administration’s attempt to use the Clean Air Act to shift electricity production from coal to cleaner energy sources. The question was whether this was a proper use of the Clean Air Act, because the agency wasn’t telling particular plants to be cleaner or use specific equipment or anything like that; it was designed to cause a national shift in electricity production from coal to solar and wind and so on. The Supreme Court ruled the EPA couldn’t do that under the Clean Air Act, because the statute didn’t clearly authorize it.

It’s a very important case for the principle of constraints on administrative agencies and not letting them make decisions that Congress hasn’t granted them the authority to make.

Any other famous cases you worked on that you wanted to highlight?

Our firm had two Obamacare cases. Those were probably the most high-profile. I also worked on the Supreme Court case in 2021 involving Arizona’s voting rules, where we represented the Arizona Republican Party in defending those rules against a Voting Rights Act challenge.  We won that case 6-3.

Okay, that was business; now let’s get personal. Tell us a little about your background.

I’m from Toronto. I went to Netivot HaTorah Day School for elementary school and Community Hebrew Academy of Toronto [CHAT] for high school. I attended York University in Toronto for three years, graduating in 2004. Then I moved to Boston and went to Harvard Law School.

You clerked for Justice Antonin Scalia. Whether you were a conservative who loved him or a liberal who hated him, it’s inarguable that he was the most colorful justice in recent memory. What was that like?

He was definitely larger than life!

By the time I clerked for him, he had been on the Court for a long time. So it wasn’t actually that hard of a job, because he already had written about most topics, so you kind of knew where he stood on things. He was a great writer, and it was just a lot of fun to be able to talk about these cases with him and see how he thought through them. It was an amazing opportunity, obviously, for somebody just out of law school to have that experience.

Was he as much of a curmudgeon in person as his public persona?

I wouldn’t say “curmudgeon.” I’ll say he didn’t hide his emotions. So you would know how he felt about something. But it could be both good or bad. He could be a very happy and engaging and lively person. He was a great boss.

Are there any particularly interesting stories you can share?

There were some funny Jewish things that happened during the year. He actually had two frum clerks; the other was Moshe Spinowitz, who is a tax lawyer in Boston now. Moshe was a year ahead of me at Harvard, and we clerked together for Judge Boudin on the First Circuit before clerking for Justice Scalia.

Rabbi Adin Steinsaltz came to visit at one point during the year, which was really neat. He had a meeting with the justice, and we got to meet him.

Justice Scalia had to give a speech at one point, I can’t remember what it was, it was a Jewish institution in New York, and we worked on the speech and obviously put in a lot of inside stuff that they were very impressed that he knew!

I had a funny little story with Scalia when he spoke at the Agudath Israel dinner in 2008. I guess that was shortly before you started working for him, so you would not have written that particular speech. During a reception at that dinner I asked him to sign a printed copy of his famous dissent in Lawrence v. Texas (2003). He signed it, and then as he walked away, he grumbled, “That was one of our worst …” He was still angry about that ruling.

You get what I’m saying about how he doesn’t hide his views!

I’ve heard that he had a lot of frum clerks, and a lot of respect for Talmudic study.

Yes, he definitely did. He was friendly with Nat Lewin from Harvard from decades ago, so he had that connection. He definitely appreciated what we brought to the table.

A Scalia dissent in Caperton v. Massey, [a 2009 case in which he argued that the Constitution’s Due Process Clause was being applied over-broadly], quoted from Pirkei Avos: “A Talmudic maxim instructs with respect to the Scripture, ‘Turn it over, and turn it over, for all is therein.’ Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.” Did you write that?

I’m not supposed to say what I wrote or didn’t write, but it was the year I clerked.

I have heard of clerks years later saying, “My justice’s ruling in such-and-such case was written by me.” Are you saying there is some Supreme Court rule that they shouldn’t be saying that, or is it just a personal preference?

I am not sure if it’s a formal rule, but I don’t think it’s appropriate for a clerk to take credit for things like that. It’s a collaborative process, and clerks are supposed to be more anonymous.

I’d like to ask you now about the leak of an early draft in the Dobbs case, which let the public know that Roe v. Wade was likely to be overturned.

I’m sure a leak like that was shocking to the community of former clerks. Can you tell us your feelings when that happened, and if you had any conversations with other clerks about it? And who do you think might have leaked it?

Everyone was quite upset. There was really widespread shock and disappointment by people who had worked at the Court, because you have a certain respect for the institution, and it’s so damaging to see that. Everyone I spoke to certainly felt that way. I don’t have any idea who did it, and I don’t have any special insight, unfortunately.

The two theories are that it was a liberal clerk or justice who was upset at the impending ruling and trying to gin up public outrage to get a conservative justice or two to change their ruling; or that it was a conservative clerk who released it to make sure that the conservatives would be forced to stick to their ruling to overturn Roe v. Wade rather than maybe joining the moderate Chief Justice Roberts, who took a middle-ground approach.

I’ve heard those theories. I just don’t know. It’s so hard to imagine anyone doing that, I can’t really say one way or the other.

Though you don’t know the identity of the person, do you think it was probably a clerk? Might it have actually been a justice? Or was it just someone in the copy room?

It could have been any employee. I would not think it would be a justice. And I would hope it wouldn’t be a clerk. But this is why they’re having an investigation.

How many people in total — justices, clerks, typists, copyists, you name it — see the draft copies before the final ruling is released?

I would guess in the range of 75 to 100.

If they find the person who leaked it, if it’s a clerk they’ll probably be disbarred, but to your knowledge is there any federal crime here?

[At this point, Roth laughs and there is a pause. -Ed.]

I guess I can’t ask because you might end up defending that guy, right?

[Laughs.] That’s right! I can’t really address that.

I don’t know. Look, what I’ve learned is there are a lot of federal crimes out there, and they’re often applied in a very broad way, whether right or wrong. So there are a lot of risks you take.

On that note, about how there are a lot of federal laws and they can be applied in different ways: These corruption cases you’ve argued, do you feel the prosecutors were motivated by righteous anger at government officials misusing their power, or are they trying to make names for themselves, to attain higher office?

I suspect it’s both. But sometimes you get the feeling that something happened that looks unsavory or unethical or in the press is portrayed a certain way, and then you have prosecutors try to figure out, “How can we charge that?” You’re not really starting with the crime and figuring out whether something violates it; you’re starting with the act that you want to prosecute, and you’re working backwards to find the crime. When you do that, you’re trying to jam things into holes where they might not fit. I get the sense that’s what we’re often dealing with when you get these novel situations.

My partner just argued a case I also worked on, the appeal of the “Varsity Blues” college admissions scandal [in which college officials were allegedly bribed by people, including a number of celebrities, to get their children into prestigious universities. -Ed.]. It’s a similar situation, where prosecutors think, “This feels like something wrong,” and they try to charge it as bribery when it doesn’t actually fit the elements of the crime. I think you see that a lot with some of these high-profile cases.

Since Donald Trump started running for office, he and his companies have faced investigations from the New York attorney general and Manhattan district attorney, unrelated to anything he did as President. Trump Organization was just convicted of tax fraud. Do you feel these are politically motivated?

I can’t address any particular case. I can say that I think there is a dangerous trend toward criminalizing political activity and trying to criminalize political opponents. And I think it’s dangerous, regardless of which party it is or which candidate it is. My view is the political disputes should be handled by the political process. And when you start trying to apply these vague statutes to get at political conduct, it’s really damaging to the integrity of the system.

They call it “lawfare.”

Say a case comes before a judge, and looking at the facts of the case, the judge believes that the defendant may indeed have committed the crime he’s accused of — but the judge also believes that the prosecution was politically motivated. What should a judge do in that case?

I think the law is pretty clear that you don’t look at the subjective motive of the prosecutor in any case. So I don’t think it’s appropriate for a judge to try to figure out why a case is being brought. Having said that, I think that when a judge is trying to figure out what a statute means, they should be concerned with the way it could be abused if it’s interpreted a certain way. But that’s different from saying I want to figure out whether this case was pursued in good faith.

Many prosecutors go on to higher office. Far fewer defense attorneys go on to political office. The newest Supreme Court justice, Ketanji Brown Jackson, is a rare exception, having been a public defender.

Do you feel that there’s a perverse incentive for prosecutors to get convictions and run on that to attain higher office, and that’s why there is what you view as overzealous prosecutions?

I think that there are a couple of different problems. One is whether prosecutors are trying to develop a reputation so that they can run for office, which is not necessarily a good incentive. The other is, you do have a lot of judges who are prosecutors, and you don’t have as many judges who were on the defense side. I think it’s helpful to have that other perspective in deciding cases. Everyone of course has their history and their experience that they bring to a case, which is fine, but you want to have a mix.

You’ve done some religious liberties cases, including New York’s metzitzah b’peh case. Tell us about your work in this field.

Most recently, the firm works on a clinic with Pepperdine Law School in California to do religious liberty litigation. We partner with the students to write briefs and bring cases that raise those issues, because it’s an important area and there are a lot of interesting legal issues, and they can use the help. That’s been fun. It’s a relatively new project, just started last year, headed here by Noel Francisco, and I and some other lawyers help with that.

Recently we’ve had a few interesting cases about the ability to recover money damages for violations of religious liberty under various statutes, which is important and interesting. My first case I ever argued, back in 2014, was on that issue. We lost that one, but now the law is changing in our favor. So I feel like I was kind of ahead of the curve on that one!

Since the Supreme Court’s Obergefell ruling in 2015 that redefined legal marriage, there has been a tension between religious liberties vs. new classes of protected people. The Supreme Court just heard arguments in a case of a Christian web designer from Colorado who wants to create websites only for marriages consistent with her religious beliefs, which may violate anti-discrimination laws.

The current Supreme Court is viewed as the most sympathetic to religious liberties in generations. What do you see happening with the new line of cases that we’ll probably be seeing now?

This has been bubbling up for a number of years now. There was the cake case [in which a Christian baker from Colorado refused to bake a cake for a wedding that conflicted with his religious beliefs -Ed.], and they had Fulton v. Philadelphia [regarding whether government may refuse to place children for foster care with a Catholic organization that only worked with couples in traditional marriages -Ed.] where the Court, again, didn’t quite resolve the entire issue. [In both cases, the Court ruled for the religious entity but only on narrow grounds, leaving unclear how future religious-liberties cases might be decided. -Ed.]

In the new case with the web designer, maybe we’ll get something more decisive. I do think they’re going to need to address it, because it keeps coming up in different contexts.

We have a pluralistic society where we’re supposed to be respecting religious freedom. We also have states that have taken pretty aggressive positions on discrimination rules, and those come into conflict with each other. So I’m hoping we’ll get some guidance from the Court this term on how to resolve that.

Alright, my final question: You have what might be described as a fairly decent curriculum vitae.What are your long-term goals? Do you want to stay in private practice? Go into government? You have the resume for a federal judgeship…

I’ve always been interested in doing something for government. But I’m Canadian, and I didn’t become a U.S. citizen until last year, so I wasn’t really eligible for anything until recently. We’ll have to see what transpires politically, over the next five or 10 years. In the meantime, I’m very much enjoying and committed to my private practice.

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rborchardt@hamodia.com