Maybe our criminal code needs a new federal offense: non-extortionary extortion. That way, the local US attorney’s office could really nail two Walsh administration appointees for crimes they didn’t commit.
As things currently stand in a case that has featured bazooka-armed federal prosecutors pursuing two City Hall chipmunks, a conviction seems a long way off. Despite the awesome power and best efforts of the federal government, Tim Sullivan and Ken Brissette seem unlikely to go to prison for having prodded a music-event organizer to add some union labor to its crew for a 2014 music festival on City Hall Plaza. Which would be embarrassing indeed for the federal legal eagles.
Just to bring the case to trial, prosecutors need the US Court of Appeals for the First Circuit in Boston to agree that a district judge’s proposed jury instructions about extortion were too narrow. Last March, US District Court Judge Leo Sorokin said that for Sullivan and Brissette to be found guilty of extortion, prosecutors needed to show that they had personally benefited from their actions, a standard that could also be met if they were found to have directed a benefit to their families or an entity they were affiliated with or indebted to. When prosecutors admitted they couldn’t show that, Sorokin dismissed the charges. The US attorney’s office then appealed the dismissal.
Andrew Lelling, the current US attorney for Massachusetts, didn’t hold that post when the US attorney’s office moved to indict Sullivan and Brissette. But he is presiding over the appeal of Judge Sorokin’s ruling.
So when Lelling met with the Globe editorial board on Monday, I asked whether, after Sorokin’s dismissal, the US attorney’s office had paused to consider whether they were overreaching in this case. Lelling thinks Judge Sorokin is under-reaching.
“I don’t agree that what are essentially prosecutions for extortion require the exchange of tangible value, of dollars, or of objects, or of something,” he said.
Here, it’s also important to note that the US attorney’s office has acknowledged that Sullivan and Brissette “did not overtly threaten they would impede the permitting and licensing process for the . . . music festival if the company did not hire members of Local 11 for its production.”
Lelling, however, maintained that he is “behind that case 100 percent.”
To my ear, he didn’t actually sound that way. Asked if it couldn’t have been handled differently — perhaps by getting a legal commitment from the city that it would never apply any pro-union pressure to those seeking to stage events on city property — the US attorney had this to say:
“I take your point, in that in a given situation, there can be several ways to deal with a particular kind of misconduct. It doesn’t always have to be indicting somebody.”
Lelling then began to note that he is the one who has to make the tough calls in matters like this — before interrupting himself to note that the decision to indict Sullivan and Brissette was arrived at “before my time” as leader of the office.
“Sometimes we get it right, sometimes we don’t,” he added. “I agree with you that you want to be proportional in these kind of situations. So we may just disagree on what’s proportional here.”
Perhaps I have a poorly calibrated sense of proportionality, but it does seem strange to me that the US attorney’s office is pressing an extortion prosecution against these two even though prosecutors acknowledge that they didn’t benefit from their alleged actions and, further, that those actions didn’t include any explicit threats.
Lelling summed it all up this way: “The arguments that you’re making are the arguments that the defense are making in this case. I don’t think they’re unreasonable arguments. I think it is a tough issue. And so, this is what you have the appeals process for.”
Not that tough an issue, really — not if one is committed to fairness and proportionality.
Let’s hope that the Court of Appeals will agree with Judge Sorokin and strike a second judicial blow against a bad case of prosecutorial overkill.