Bharara and the Moreland Commission: Federal Overstep or Legitimate Intervention?

As a reaction to widespread corruption in New York state government, Governor Andrew Cuomo and Attorney General Eric Scheiderman appointed the Moreland Commission to Investigate Public Corruption in July of last year. The members of the Commission were deputy attorneys general with broad powers to investigate violations of bribery, campaign finance, lobbying and election laws. Governor Cuomo disbanded the Moreland Commission last March, purportedly as part of a bargain to pass stricter anticorruption laws made in a larger budget deal. Two weeks later, the federal government stepped in, in a very public way. Preet Bharara, the U.S. Attorney for the Southern District of New York, opened an investigation into Cuomo’s decision to prematurely shut down the Commission and openly questioned Cuomo’s justification for the decision. Last week, the New York Times reported that subpoenas may have been served on the Commission’s former counsel, possibly to root out evidence of interference by the governor’s office in the workings of the Commission.

The federal investigation raises an important question: how involved should federal prosecutors be in corruption at the state and local level? Cuomo’s defensive response to Bharara’s announcement suggests that Cuomo believes involvement in this case is undesirable. However, any umbrage-taking on the part of the governor would be misplaced. For two reasons, Bharara’s intervention stands out as a uniquely well-founded and legitimate example of the increasingly commonplace practice of federal prosecution of state and local corruption.

  • First, Bharara is holding the state government accountable to goals that the state government itself articulated, rather than imposing external federal values on state officials. Some critics of federal prosecutions of state and local corruption, like Professor Roderick Hills, have argued that when federal prosecutors go after state-level corruption (especially alleged conflict of interest problems), they wrongly impose federal values of “bureaucratic populism” that do not correspond to the “participatory populism” that characterizes state governance. But whatever the validity of that critique in other contexts, it doesn’t apply here.  In this case, Bharara is holding Governor Cuomo accountable to governance values that the governor himself endorsed by creating the Commission. In fact, the majority of New York voters across party lines disapprove of the shutting down of the Commission, which suggests that Bharara is effecting the state public will. Thus, this situation is roughly analogous to federal prosecution of state officials under state ethics laws, which Hills believes is permissible.
  • Second, the New York state government actively involved the U.S. Attorney’s Office in the fight against public corruption at the state level from the beginning. This is not a case where a federal prosecutor stepped into state or local wrongdoing uninvited. It would be disingenuous to characterize Bharara’s involvement now as meddling by a federal prosecutor in state affairs. The Moreland Commission asked Bharara to testify in its first public hearing. In his testimony, Bharara emphasized the cooperation between the state government and the U.S. Attorney’s Office, as well as the use of both federal and state statutes to prosecute public corruption. The U.S. Attorney’s Office was even involved in changes to state laws, including a state law that allowed convicted public officials to continue to receive a state pension.

So, although at first glance Bharara’s investigation may seem like an overly politicized incursion into state affairs, I think Bharara stands on solid ground. However, this example likely cannot be extrapolated to other scenarios. In cases where a state did not encourage federal involvement in a corruption issue and where a federal prosecutor is not vindicating goals articulated by state actors, I do not think that Bharara’s investigation carries much justificatory weight.

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