An uphill fight awaits defense lawyers who are representing former congressman Robin Hayes and campaign donor Greg Lindberg in a pending federal corruption case, legal experts say.
Still, those lawyers are likely to use court motions to challenge the government’s central assertion — that Hayes, Lindberg and two of Lindberg’s associates took part in a scheme to bribe North Carolina insurance commissioner Mike Causey.
The four are accused of trying to bribe Causey with $2 million in campaign contributions. Hayes, the state Republican Party chairman, tried to funnel bribe money to Causey’s re-election campaign, the indictment alleges. Federal prosecutors contend the men wanted Causey to remove a deputy commissioner responsible for regulating one of Lindberg’s companies.
Causey cooperated with federal investigators and recorded his conversations with the men who were later indicted.
Federal prosecutors are likely quite confident in the strength of their evidence, four legal experts told the Observer.
Public corruption cases are a high priority in the federal government, and they get multiple levels of review by the FBI, the U.S. Attorney’s Office and the U.S. Justice Department, said Chris Swecker, retired assistant director of the FBI.
“So they tend to be stronger cases,” said Swecker, who oversaw public corruption cases along with all of the FBI’s other criminal investigations in the mid 2000s. “That doesn’t mean they don’t lose some of them. … But those are few and far between.”
The numbers show that Swecker is right. In 2017, federal prosecutors charged 863 people in public corruption cases and convicted 837, according to a report that the U.S. Department of Justice made to Congress.
Swecker said he expects at least one defendant in the North Carolina case will agree to cooperate with the government in exchange for a favorable plea deal.
“When you have four people, somebody’s going to break ranks is my general observation,” said Swecker, who now works in private practice in Charlotte.
And that would likely put pressure on other defendants.
“If someone flips along the way and it looks like the case is even stronger … a good lawyer will say, ‘Alright, the best way to get the least amount of jail time is to accept responsibility and plea,’ ” Swecker said.
Several legal experts agreed that at least some of the defendants will likely plead guilty instead of going to trial. That’s what happens in 97 percent of federal criminal cases, said Harvard Law School professor Nancy Gertner, a former federal judge.
“In a situation where the government has tapes, the pressure to plead guilty is substantial,” Gertner said.
Lawyers representing Hayes and Lindberg have maintained their clients are innocent, but they declined to comment for this story. Officials with the U.S. Attorney’s office also would not comment.
A new standard
But the government doesn’t win all of its public corruption cases.
A judge dismissed all charges against Sen. Robert Menendez in 2018 after the jury in his federal trial deadlocked. Prosecutors had argued that Menendez, a New Jersey Democrat, accepted more than $600,000 in political contributions — along with other valuable perks — in exchange for political favors.
Former Virginia Gov. Robert McDonnell, meanwhile, won his case on appeal, despite evidence that he had received $175,000 in loans and gifts from a Richmond businessman — and that he had taken steps to help his benefactor’s business. In 2016, the U.S. Supreme Court vacated the trial court’s conviction of McDonnell on the grounds that his actions were not “official acts.”
That ruling narrowed the legal definition of public corruption. Since then, many defense lawyers in corruption cases have argued that their clients weren’t taking an “official action,” said Jessica Tillipman, an assistant dean at the George Washington University Law School who teaches classes about anti-corruption efforts.
But Tillipman said the initial allegations disclosed in the Lindberg case suggest that the defendants were asking the North Carolina insurance commissioner to take what was clearly an official act — appointing a different regulator to oversee Lindberg’s company.
“I would suspect (federal prosecutors) have fairly good evidence on their side to bring these cases because they are approaching them even more cautiously in light of recent (court) decisions,” Tillipman said.
Get ready for arguments
Still, legal experts say, defense lawyers could make an array of arguments. Among them:
▪ That the political contributions were legally made.
“Campaign contributions are always a little bit trickier because they are legal,” Tillipman said. “It’s not like handing somebody a Rolex or a shopping spree or a loan.”
Citizens are also legally entitled to ask public officials to hire certain people. That’s what Lindberg, a Durham billionaire, did in suggesting that Causey hire one of his associates to replace the deputy commissioner he didn’t like, according to the indictment.
The question is whether the campaign contributions and requested political favors were linked, said Gertner, the Harvard law professor.
“And the issue is how far the evidence goes to establish that,” she said.
▪ That the defendants’ actions and recorded statements were ambiguous, and not clearly incriminating.
“It’s rare to get a situation like (former Charlotte mayor) Patrick Cannon where he just lays it out. ‘He says I want you to do this and I’m going to give you this.’ Quid pro quo,” Swecker said. “Usually that’s proved through circumstantial evidence. In this case, what I’d be looking for is how direct is this evidence?”
Cannon was sentenced to federal prison in 2014 after accepting more than $50,000 in bribes from undercover FBI agents posing as real estate investors.
▪ That the defendants were victims of entrapment — in other words, they were tricked into committing a crime.
Defense lawyers rarely prevail on that argument, several of the legal experts said, but that may not prevent them from trying.
Any plea deals would likely come within six months, legal experts say. But if any of the defendants refuse to plead guilty, it could be as long as 18 months before the trial begins, some experts said.