Amicus Curiae Brief — Alexander Sittenfeld aka P. G. Sittenfeld, Petitioner v. United States
Supreme Court briefAug 14, 2025
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No. 25-49
IN THE
Supreme Court of the United States
ALEXANDER SITTENFELD AKA P.G. SITTENFELD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF OF FORMER FEDERAL OFFICIALS AS
AMICI CURIAE SUPPORTING PETITIONER
DONNA M. FARAG
AMANDA N. BAIRD
WILMER CUTLER PICKERING Counsel of Record
CHARLES C. SPETH
HALE AND DORR LLP
MEGAN O. GARDNER
60 State Street
WILMER CUTLER PICKERING
Boston, MA 02109
HALE AND DORR LLP
2100 Pennsylvania Ave. NW
Washington, DC 20037
(202) 663-6000
donna.farag@wilmerhale.com
Counsel for Amici Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................... ii
INTEREST OF AMICI CURIAE................................... 1
INTRODUCTION AND SUMMARY OF
THE ARGUMENT...................................................... 2
ARGUMENT ....................................................................... 5
I.
POLITICAL SPEECH AND CAMPAIGN
FUNDRAISING ARE AN INDISPENSABLE
PART OF OUR DEMOCRACY ......................................... 5
II. THIS COURT SHOULD CLARIFY THE PROPER
STANDARD FOR BRIBERY AND EXTORTION
IN A CAMPAIGN FINANCE CASE ................................ 8
III. THE SIXTH CIRCUIT’S APPLICATION OF
MCCORMICK
VIOLATES
THE
FIRST
AMENDMENT RIGHTS OF PUBLIC OFFICIALS
AND THEIR SUPPORTERS .......................................... 12
IV. THE WEAKENED MCCORMICK STANDARD
APPLIED BELOW INVITES ARBITRARY OR
POLITICALLY MOTIVATED PROSECUTIONS ............. 20
CONCLUSION ................................................................. 24
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Americans for Prosperity Foundation v. Bonta,
594 US 595 (2021)....................................................... 14
Brown v. Hartlage, 456 U.S. 45 (1982) ............................. 5
Buckley v. Valeo, 424 U.S. 1 (1976) .................................. 5
Citizens United v. FEC, 558 U.S. 310 (2010) .... 5, 12, 13, 17
Cramp v. Board of Public Instructions of
Orange County, 368 U.S. 278 (1961) ................... 22
Eu v. San Francisco County Democratic
Central Committee, 489 U.S. 214 (1989) .............. 5
Evans v. United States, 504 U.S. 255 (1992) ........... 3, 8, 9
FEC v. Cruz, 596 U.S. 289 (2022).................................... 15
Illinois State Board of Elections v. Socialist
Workers Party, 440 U.S. 173 (1979) ...................... 5
Kolender v. Lawson, 461 U.S. 352 (1983) ....................... 22
McCormick v. United States, 500 U.S. 257
(1991) ................................................. 3, 4, 8, 9, 11, 12
McCutcheon v. FEC, 572 U.S. 185 (2014) .................. 4, 15
McDonnell v. United States, 579 U.S. 550
(2016) ................................................................. 21, 23
iii
TABLE OF AUTHORITIES—Continued
Page
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958)................................................. 14
Snyder v. Phelps, 562 U.S. 443 (2011) ............................ 13
Trump v. United States, 603 U.S. 593 (2024) ................ 21
United States v. Abbey, 560 F.3d 513 (6th Cir.
2009)........................................................................... 9
United States v. Allinson, 27 F.4th 913 (3d
Cir. 2022) ................................................................. 12
United States v. Benjamin, 2022 WL 17417038
(S.D.N.Y. Dec. 5, 2022) ......................................... 10
United States v. Benjamin, 95 F.4th 60 (2d
Cir. 2024) ............................................................. 9, 10
United States v. Blandford, 33 F.3d 685 (6th
Cir. 1994) ................................................................... 9
United States v. Carpenter, 961 F.2d 824 (9th
Cir. 1992) ................................................................. 12
United States v. Coyne, 4 F.3d 100 (2d
Cir.1993) .................................................................. 10
United States v. Davis, 841 F. App’x 375 (3d
Cir. 2021) ................................................................. 11
United States v. Jennings, 160 F.3d 1006 (4th
Cir. 1998) ................................................................. 11
iv
TABLE OF AUTHORITIES—Continued
Page
United States v. McCabe, 103 F.4th 259
(4th Cir. 2024) ......................................................... 12
United States v. Morgan, 635 F. App’x 423
(10th Cir. 2015) ....................................................... 11
United States v. Taylor, 993 F.2d 382 (4th Cir.
1993)......................................................................... 10
United States v. Tomblin, 46 F.3d 1369 (5th
Cir. 1995) ................................................................. 12
DOCKETED CASES
Allinson v. United States, No. 22-328 (U.S.)................. 10
Benjamin v. United States, No. 24-142 (U.S.) .............. 10
Blagojevich v. United States, No. 17-658 (U.S.) ............. 10
Libby v. Fecteau, No. 24A1051 (U.S.) ............................ 21
Minor v. United States, No. 09-1422 (U.S.) ................... 10
Scrushy v. United States, No. 11-972 (U.S.) .................. 10
Terry v. United States, No. 13-392 (U.S). ...................... 10
STATUTES
18 U.S.C.
§ 1951 ......................................................................... 7
§ 666 ..................................................................... 7, 11
v
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
Ackley, Kate, McCarthy’s Money at Stake for
House GOP in Speaker’s Downfall,
Bloomberg Government (Oct. 4, 2023),
https://tinyurl.com/mt74pky7 .............................. 19
A list of 50 things Andrew Cuomo has ‘gotten
done’, The New York Groove (June 5,
2025), https://tinyurl.com/96ddpvde ................... 16
Barth, Jonathan, Criminal Prosecution in
American History: Private or Public?,
67 S.D. L. Rev. 119 (2022)..................................... 20
Beland, Amanda, Mayor Wu Kicks Off
Reelection Campaign in South End,
WBUR News (Apr. 5, 2025),
https://tinyurl.com/46tpxe7h ................................ 14
Bustillo, Ximena, It Takes Lots of Money to
Win Elections. Here’s What You Need
to Know, NPR (Nov. 1, 2023),
https://tinyurl.com/37pck5mc....................... 6, 7, 19
CNN Interview with Rep. Pramila Jayapal
(Sept. 20, 2021), http://tinyurl.com/
mr278ur4 ................................................................. 17
Cost of Election, Open Secrets,
https://tinyurl.com/bkwk759b
(last visited Aug. 14, 2025)..................................... 6
vi
TABLE OF AUTHORITIES—Continued
Page
Dawsey, Josh, Trump makes sweeping
promises to donors on audacious
fundraising tour (May 28, 2024),
https://tinyurl.com/2dhch4pb ............................... 22
Democrats, Veepstakes: Trump and J.D.
Vance Will Give Ultra-Wealthy Donors
Whatever They Want if They Bring
Their Checkbooks (June 20, 2024),
https://tinyurl.com/45eyfkzc................................. 22
Donald J. Trump (@realDonaldTrump), Truth
Social (July 26, 2025, 7:45 p.m.),
https://tinyurl.com/2nz56prn ................................ 23
ENDORSEMENT: Planned Parenthood
Action Fund Backs Alsobrooks,
Mucarsel-Powell for Senate (May 21,
2024), https://tinyurl.com/3cubyydu ................... 15
Frazin, Rachel, Climate Groups Say They’re
Putting $55M Into Pro-Harris Ads,
The Hill (Aug. 19, 2024),
https://tinyurl.com/bdzjktr7 ................................. 14
Friedman, Lisa, Oil Interests Gave More
Than $75 Million to Trump
PACs, New Analysis Shows,
N.Y. Times (Nov. 1, 2024),
https://tinyurl.com/3e6eusev ................................ 14
vii
TABLE OF AUTHORITIES—Continued
Page
Ikonomova, Violet, Blue Cross Has Given
More Cash To Whitmer Than Any
Michigan Gov Candidate In Past
Decade, Detroit Metro Times (Aug. 2,
2018), http://tinyurl.com/2h8t3uuj ....................... 15
Irwin, Lauren, Johnson Expresses Confidence
Ahead of Friday’s Speaker Vote,
The Hill (Jan. 2, 2025),
https://tinyurl.com/3jerscfy .................................. 17
Jackson, Robert, The Federal Prosecutor:
delivered at The Second Annual
Conference of United States
Attorneys (Apr. 1, 1940),
https://tinyurl.com/mt3ynxrm ............................. 21
Joe Biden The Former Vice President Wants
to Restore the Soul of America,
N.Y. Times (Jan. 4, 2020),
https://tinyurl.com/dfreychh ................................ 17
Landry Receives NRA Endorsement,
Jeff Landry for Governor,
https://tinyurl.com/5n6uaenu
(last visited Aug. 14, 2025) ............................. 14, 15
Lemann, Nicholas, The Controller,
The New Yorker (May 4, 2003),
https://tinyurl.com/y8mk8cwc ............................. 19
viii
TABLE OF AUTHORITIES—Continued
Page
McGrory, Mary, Signs of Democratic Life,
Wash. Post (Nov. 14, 2002),
https://tinyurl.com/mryds34m ............................. 16
Palmer, Ken, East Lansing City Council
Races Features Eight Candidates,
Numerous Issues, Lansing State
Journal (Nov. 4, 2023),
https://tinyurl.com/2jtenhbz................................. 17
Peek, Liz, Biden’s Alarming Harassment of
Elon Musk, The Hill (Dec. 15, 2023),
https://tinyurl.com/ef8e642c ................................. 22
Penn, Ben & Maia Spoto, Trump’s LA
Prosecutor Orders Cases His
Staff Say Lack Evidence,
Bloomberg Law (July 29, 2025),
https://tinyurl.com/suhw38hw ............................. 23
Press Release, EMILYs LIST Endorses
Kamala Harris for President,
EMILYs List (July 21, 2024),
https://tinyurl.com/5kuy556b ............................... 15
Press Release, Senator Joe Manchin,
Manchin to Oppose Every EPA
Nominee (May 10, 2023),
https://tinyurl.com/4e5nfvuk ................................ 14
ix
TABLE OF AUTHORITIES—Continued
Page
Statistical Summary of 21-Month Campaign
Activity of the 2023-2024 Election
Cycle, FEC (Jan. 28, 2025),
https://tinyurl.com/ycxakjsy .................................. 6
Slattery, Gram & Andy Sullivan, Republicans
speak out against US debt-ceiling
deal, in sign of rocky road ahead,
Reuters (May 29, 2023),
https://tinyurl.com/5dwpzddt............................... 16
Voting Record, Senator Elizabeth Warren,
https://tinyurl.com/mw8edjr5
(last visited Aug. 14, 2025) ................................... 14
INTEREST OF AMICI CURIAE
This brief is submitted by the following:
•
John Ashcroft, Attorney General (2001-2005),
U.S. Senator (1995-2001);
•
William P. Barr, Attorney General (2019-2020 &
1991-1993),
Deputy
Attorney
General
(1990-1991), Assistant Attorney General, Office of
Legal Counsel (1989-1990);
•
Gregory B. Craig, Counsel to the President
(2009-2010), Assistant to the President and
Special Counsel (1998-1999), Senior Counsel at
Foley Hoag (present);
•
Mark
Filip,
Deputy
Attorney
General
(2008-2009), Judge of the U.S. District Court for
the Northern District of Illinois (2004-2008);
•
Emmett T. Flood, Counsel to the President
(2018), Special Counsel to the President
(2018-2019 & 2007-2008), Deputy Counsel to the
President (2008-2009);
•
Michael B. Mukasey, Attorney General
(2007-2009), Chief Judge of the U.S. District for
the Southern District of New York (2000-2006),
Judge of the Southern District of New York
(1988-2006);
•
Donald F. McGahn II, Counsel to the President
(2017-2018), Chair of the Federal Election
Commission (2008), Member of the Federal
Election Commission (2008-2013).
Amici are a bipartisan group of former federal
officials with unique expertise regarding interactions
2
that occur between government officials and campaign
donors as well as members of the public at large. Amici’s
collective experience includes service as Attorney
General of the United States and Counsel to the
President. In their roles as the senior-most lawyers in
the Executive Branch, they worked at the intersection
of law and politics and frequently counseled elected
officials on their legal obligations and ethical duties.
Based on their experiences, amici have a particular
interest in the constitutional and even-handed
application of our laws. This case therefore interests
amici because the current framework applied by the
Sixth Circuit presents serious risks of both chilling First
Amendment rights and inviting politically motivated
prosecution.
INTRODUCTION AND SUMMARY OF
THE ARGUMENT
The question presented in this case strikes at the
heart of the First Amendment: whether a political
candidate can be convicted for bribery or extortion
based on political speech.1 Campaign fundraising has
been an essential part of elections and our democracy
since the founding. Given this enduring reality, this
Court imposed a stringent requirement for federal
prosecutions for bribery based on campaign
contributions: Public officials and candidates for public
office cannot be convicted for bribery in the campaign
1
No counsel for a party authored this brief in whole or in part,
and no entity or person, other than amicus curiae, its members, and
its counsel, made a monetary contribution intended to fund the
preparation or submission of this brief. Counsel of record for the
parties received notice of amici’s intent to file this brief at least 10
days prior to its due date.
3
contribution context unless there is an explicit quid pro
quo. In other words, prosecutors must show that the
contribution is “made in return for an explicit promise or
undertaking by the official to perform or not perform an
official act.” McCormick v. United States, 500 U.S. 257,
271, 273 (1991) (emphasis added). “To hold otherwise,”
this Court reasoned, “would open to prosecution not only
conduct that has long been thought to be well within the
law but also conduct that in a very real sense is
unavoidable so long as election campaigns are financed
by private contributions or expenditures, as they have
been from the beginning of the Nation.” Id. at 272.
Yet one year after this Court issued its opinion in
McCormick, in a case involving a public official who
accepted a personal cash payment in addition to a
campaign contribution, this Court upheld a conviction
based on “an implicit promise” alone. Evans v. United
States 504 U.S. 255, 257 (1992) (emphasis added). And
Justice Kennedy’s concurrence opined that the “official
and the payor need not state the quid pro quo in express
terms.” Id. at 274 (Kennedy, J., concurring). In the
years since, lower courts have struggled to understand
whether Evans applied to bribery cases involving only
campaign contributions and if it modified McCormick,
with some drawing an elusive distinction between
“express” and “explicit” agreements. In the opinion
below, the Sixth Circuit introduced another layer of
confusion in a case involving pure campaign
contributions: Evidence establishing a quid pro quo
need not even be unambiguous. So, according to the
Sixth Circuit, while explicit “‘speaks’” to the “‘degree to
which the payor and payee were aware of’” the terms of
the quid pro quo, the terms themselves need not be
express, and the evidence establishing the “explicit”
quid pro quo need not be unambiguous. Pet.App.21a.
4
The result? Courts, prosecutors, and juries continue to
grapple with the “subtle distinction” between “explicit”
and “express,” even though those terms are “synonyms.
Pet.App.64a (Murphy, J. concurring). Juries can convict
a public official for a nebulous agreement that is not
tethered as to a known, specific act, and can now do so
based on ambiguous evidence.
Pet.App.64a, 74a
(Murphy, J. concurring).
In P.G. Sittenfeld’s case, the ambiguous evidence
was an amalgamation of political statements that are
squarely protected by the First Amendment. The Sixth
Circuit’s affirmance of Sittenfeld’s conviction therefore
eviscerates the very line this Court drew in McCormick.
It opens the door to prosecutions for campaign
contributions for “general influence,” not quid pro quo
bribery, McCutcheon v. FEC, 572 U.S. 185, 209 (2014)
(plurality op.), criminalizing the “unavoidable” conduct
long “thought to be well within the law,” McCormick,
500 U.S. at 272. Where the evidence rests on the minerun of statements made in the heat of campaigning, a
prosecution no longer targets “campaign contributions
in exchange for an explicit promise of favorable future
action,” but instead crosses the line and impermissibly
targets “campaign contributions with anticipation of
favorable future action.”
Id. at 276 (Scalia, J.,
concurring) (emphasis added).
The lower courts’ contrived attempts to square
McCormick and Evans have resulted in a vague and
unworkable standard that subjects public officials to
criminal liability for everyday statements to their
supporters and contributors. And in the face of
increasingly politicized prosecutions, a standard that
does not adhere to McCormick’s rigid requirements
risks the targeting of officials who espouse disfavored
5
views or are associated with unpopular groups. This
Court should grant certiorari to clarify how courts
should interpret McCormick’s quid pro quo requirement
and articulate a standard that ensures that otherwise
protected political speech is not the basis for prosecution
and convictions in campaign bribery cases.
ARGUMENT
I.
POLITICAL SPEECH AND CAMPAIGN FUNDRAISING
ARE AN INDISPENSABLE PART OF OUR DEMOCRACY
Political speech sits at the core of the protections
enshrined by the First Amendment. “Indeed, the First
Amendment ‘has its fullest and most urgent application’
to speech uttered during a campaign for political office.”
Eu v. San Francisco Cnty. Democratic Cent. Comm.,
489 U.S. 214, 223 (1989). This is because a campaign is
not only a path to “attaining political office,” but a critical
“means of disseminating ideas” to constituents, donors,
and the public at large. Illinois State Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173, 186 (1979). Time
and again, this Court has affirmed the importance of
candidates “hav[ing] the unfettered opportunity to make
their views known” as part of our “‘national commitment
to the principle that debate on public issues should be
uninhibited, robust, and wide-open.’” Buckley v. Valeo,
424 U.S. 1, 14, 52-53 (1976) (per curiam); see also Brown
v. Hartlage, 456 U.S. 45, 52-53 (1982) (collecting cases).
Public officials have the right to freely express their
positions, and the public has a right to be informed of
those positions. “The right of citizens to inquire, to hear,
to speak, and to use information to reach consensus is a
precondition to enlightened self-government and a
necessary means to protect it.” Citizens United v. FEC,
558 U.S. 310, 339 (2010); see also Buckley, 424 U.S. 14, 15
6
(“In a republic where the people are sovereign, the
ability of the citizenry to make informed choices among
candidates for office is essential.”). The laws prohibiting
bribery and extortion cannot be construed, therefore, in
a way that strikes at the heart of fundamental First
Amendment interests and protections. But in the
campaign contribution context, lower courts have done
just that, jeopardizing the protections around core
political speech.
Fundraising is an integral aspect of the election
campaigns that actualize our democracy, and, for better
or worse, it continues to dominate elections. The total
cost of the 2024 election exceeded $15 billion, with more
than $10 billion spent in congressional races and more
than $5.5 billion spent in the presidential race.2 Political
action committees also raised $12.3 billion from January
2023 through September 2024.3
These funds are essential to candidates’ campaigns.
“There’s only so much [one] can do without paying for
some sort of advertising, whether it’s TV, radio, print,
the internet. All of those things require money and
they’re very expensive.”4 And sometimes, fundraising
success serves as a ticket for admission. Republican
presidential candidates must reach a threshold of unique
donors, for example, to qualify for participation in the
2
Cost
of
Election,
https://tinyurl.com/bkwk759b.
Open
Secrets,
3
Statistical Summary of 21-Month Campaign Activity of the
2023-2024
Election
Cycle,
FEC
(Jan.
28,
2025),
https://tinyurl.com/ycxakjsy.
4
Bustillo, It Takes Lots Of Money To Win Elections. Here’s
What You Need to Know, NPR (Nov. 1, 2023),
https://tinyurl.com/37pck5mc.
7
primary debates.5 The need to raise funds capable of
sustaining a viable campaign demands officials’ time and
energy even while officials govern and seek to enact
their policy agendas.
Against this backdrop, the government prosecuted
P.G. Sittenfeld for attempted Hobbs Act extortion under
color of official right, 18 U.S.C. § 1951(a), (b)(2)), and
federal-program bribery, id. § 666(a)(1)(B)), in
connection with his efforts to solicit funds for his
campaign. Pet.App.111a. Sittenfeld, a Cincinnati city
councilman running for mayor, had consistently
supported pro-development initiatives. As part of a
years-long federal sting operation involving a
development deal involving blighted property,
Sittenfeld was arrested. At trial, the government
introduced as evidence statements made by Sittenfeld
that were otherwise protected speech, including
descriptions of his political record, puffery about his
political savvy, and pleas for financial support. One of
those statements—dubbed by the district court as the
government’s best evidence—was a clumsy plea for
funding: “[T]he one thing I will say is … you don’t want
me to be like ‘hey Chin like love you but can’t’[.] [A] lot
of people have come through in a really big way … and I
would love … for you to be one of those people too.”
Pet.App.162a-163a.
The jury convicted, and the Sixth Circuit affirmed in
a divided opinion. While each judge acknowledged the
ambiguity in evidence and the potential First
Amendment violations, the court concluded that the jury
was entitled to infer the contents of the quid pro quo
based on ambiguous evidence. Pet.App.26a-27a. In
5
Id.
8
doing so, it blessed a standard divorced from the
realities of political fundraising and which undermines
core First Amendment protections.
II. THIS COURT SHOULD CLARIFY THE PROPER
STANDARD FOR BRIBERY AND EXTORTION IN A
CAMPAIGN FINANCE CASE
Sittenfeld’s conviction is but one resulting from
decades of courts struggling to understand the threshold
for a quid pro quo bribery conviction in the campaign
contribution context. This Court stated in McCormick
that the quid pro quo must be “explicit”—the
government must show that an elected official received
campaign donations “in return for an explicit promise or
undertaking.” McCormick, 500 U.S. at 273. Then, a year
later, Evans came down. That case involved a sting
operation against a county commissioner who, amid
conversations with an FBI agent posing as a real estate
developer, accepted a personal cash payment and a
check payable to his campaign. The unlawful payments
were therefore not limited to otherwise lawful campaign
contributions.
In rejecting the commissioner’s
argument that a conviction required that he be the one
to induce the transaction, this Court affirmed a
conviction that rested on an “implicit promise”
establishing the quid pro quo. Evans, 504 U.S. at 257.
Justice Kennedy, concurring in part, opined that the
quid pro quo did not need to be stated “in express terms,
for otherwise the law’s effect could be frustrated by
knowing winks and nods.” Id. at 274 (Kennedy, J.
concurring). Instead, “[t]he inducement from the official
is criminal if it is express or if it is implied from his words
and actions, so long as he intends it to be so and the payor
so interprets it.” Id. (emphasis added).
9
Lower courts have since struggled with Evans’
application and how to square it with McCormick. To
begin with, courts have split over whether Evans has
any bearing on bribery cases based solely on campaign
contributions. Some have read Evans as introducing a
“relaxed” quid pro quo standard that applies to
non-campaign contribution cases. United States v.
Blandford, 33 F.3d 685, 695 (6th Cir. 1994) (analyzing
cases adopting the modified standard but rejecting their
reading). Others, including the panel below, have
applied Evans to pure campaign contribution cases,
construing “Evans to mean that ‘by “explicit”
McCormick did not mean “express.”’” Pet.App.20a;
accord United States v. Benjamin, 95 F.4th 60, 69 (2d
Cir.) (“Evans is an elaboration of McCormick rather
than a separate test.”), cert. denied, 145 S.Ct. 982 (2024).
And courts have waffled between the two readings, at
times offering inconsistent interpretations. Compare,
e.g., United States v. Abbey, 560 F.3d 513, 517-518 (6th
Cir. 2009) (“Evans modified the standard in noncampaign contribution cases[.]”), abrogated on other
grounds by Snyder v. United States, 603 U.S. 1 (2024),
with Blandford, 33 F.3d at 696 (“We read Evans … [to]
merely clarif[y] … that the quid pro quo of McCormick
is satisfied by something short of a formalized and
thoroughly articulated contractual arrangement[.]”).
Courts have further labored to square McCormick’s
requirement that payments be made “in return for an
explicit promise or undertaking,” 500 U.S. at 273, with
the pronouncement that a promise that could be
“implicit,” Evans, 504 U.S. at 257, or “implied,” id. at 274
(Kennedy, J. concurring). For good reason. “[I]f one
thing is clear, it is that an ‘explicit’ promise cannot be
satisfied by implication, as it would be contradictory to
hold that a quid pro quo agreement could be
10
simultaneously ‘explicit’ and ‘implicit.’” United States v.
Benjamin, 2022 WL 17417038, at *9 (S.D.N.Y. Dec. 5,
2022), reversed and remanded, 95 F.4th 60 (2d Cir.), cert.
denied, 145 S. Ct. 982 (2024). The appellate courts
expressed similar confusion: “Evans offers two slightly
different statements of what satisfies the quid pro quo
requirement,” said the Second Circuit. United States v.
Coyne, 4 F.3d 100, 113 (2d Cir. 1993). Thirty years ago,
the Fourth Circuit opined that defining extortion “has
proved difficult, and the Supreme Court is still
developing an understandable definition.” United States
v. Taylor, 993 F.2d 382, 383 (4th Cir. 1993). That
definition has yet to come.
Instead, petitions for certiorari have sprung from
nearly every circuit, each asking the Court to provide
clarification on what type of quid pro quo is needed for a
federal bribery conviction in the campaign contribution
context. See, e.g., Benjamin v. United States, No. 24-142
(U.S. Aug. 5, 2024) (2d Cir.); Allinson v. United States,
No. 22-328 (U.S. Oct. 5, 2022) (3d Cir.); Minor v. United
States, No. 09-1422 (U.S. May 24, 2010) (5th Cir.); Terry
v. United States, No. 13-392 (U.S. Sept. 23, 2013) (6th
Cir.); Blagojevich v. United States, No. 17-658 (U.S. Nov.
2, 2017) (7th Cir.); Scrushy v. United States, No. 11-972
(U.S. Feb. 6, 2012) (11th Cir.).
Without guidance, the circuits have developed a test
that is malleable at the hands of the prosecutor.
“[C]ircumstantial evidence can prove an agreement, and
though an explicit agreement must be present, it need
not be express.” Pet.App.26a. But the line between
“explicit” and “express” is so thin as to be nonexistent.
Indeed, there is a dispute as to whether the terms mean
the same thing. Compare Pet.App.64a (Murphy, J.
concurring) (noting that “express” and “explicit” are
11
“synonyms”), with United States v. Davis, 841 F. App’x
375, 379 (3d Cir. 2021) (rejecting argument that
“‘express’ and ‘explicit’ mean the same thing”). As
Judge Murphy aptly noted, “I doubt many jurors would
understand this subtle distinction. And I doubt even
more that courts should be sending people to prison
based on it.” Pet.App.64a. Yet that is precisely the
approach courts below have blessed.
This confusion is only compounded by the fact that,
at least regarding federal-program bribery under 18
U.S.C. § 666(a)(1)(B)), prosecutors need not link to the
quid pro quo to a specific act or omission. “[O]fficials can
violate the law if they accept money with the corrupt
intent to use their official influence in the contributor’s
favor at some unknown point.” Pet.App.74a (cleaned
up). So although a “quid pro quo is most traditionally
characterized with reference to a specific, one-for-one
trade,” courts have accepted “a more general, freefloating exchange where an agreement is reached to
exchange a bribe for official action but where the official
action is not precisely identified at the time of the bribe.”
United States v. Morgan, 635 F. App’x 423, 453 (10th Cir.
2015) (Holmes, J. concurring). Courts have deemed it
“sufficient to show that the payor intended for each
payment to induce the official to adopt a specific course
of action,” but not necessarily “specific official acts (or
omissions).” United States v. Jennings, 160 F.3d 1006,
1014 (4th Cir. 1998) (emphasis added). The quid pro quo
therefore need not be express, and it can cover unknown
acts or courses of conduct that a public official supports
based on his or her ideology or constituent backing. That
alone gets dangerously close to criminalizing “campaign
contributions [made] with anticipation of favorable
future action.” McCormick, 500 U.S. at 276 (Scalia, J.
concurring).
12
But the opinion below introduces yet another
wrinkle to the “express” versus “explicit” dichotomy:
While the quid pro quo itself must be “unambiguous,” see
United States v. Allinson, 27 F.4th 913, 925 (3d Cir.
2022); United States v. McCabe, 103 F.4th 259, 282 (4th
Cir. 2024); United States v. Tomblin, 46 F.3d 1369, 1381
(5th Cir. 1995); United States v. Carpenter, 961 F.2d 824,
827 (9th Cir. 1992), evidence supporting that quid pro
quo can be ambiguous, Pet.App.26a. This, too, is another
“subtle distinction” likely to be elided by prosecutors
and juries. Pet.App.64a.
In short, courts have interpreted McCormick to
require a quid pro quo that is explicit, but which need
not be express and can be implied or inferred; at the
same time, the terms of the quid pro quo must be
unambiguous, but they need not involve a specific act or
omission—and if in the Sixth Circuit, the evidence
supporting that unambiguous quid pro quo can be
ambiguous. This standard is so esoteric as to be
untenable. The Court’s formulation in McCormick was
intended to “define[] the forbidden zone of conduct with
sufficient clarity.” 500 U.S. 273. Any such clarity has
long since been obfuscated. When “[p]eople ‘of common
intelligence must necessarily guess at the law’s meaning
and differ as to its application,’” constitutionally
protected speech is chilled. Citizens United, 558 U.S. at
324.
III. THE SIXTH CIRCUIT’S APPLICATION OF MCCORMICK VIOLATES THE FIRST AMENDMENT RIGHTS
OF PUBLIC OFFICIALS AND THEIR SUPPORTERS
This case provides an ideal vehicle for this Court to
intervene and address this confusion. The Sixth Circuit
affirmed Sittenfeld’s conviction based on ambiguous
13
evidence of a quid pro quo, Pet.App.26a-27a,
contravening this Court’s directive in McCormick that
normal political activity should not be deemed unlawful
in the fight against public corruption.
The statements underlying Sittenfeld’s conviction
are typical of our political discourse and are protected by
the First Amendment. The government’s case proving
a corrupt agreement rested on a mosaic of statements
that fall into three primary categories: (1) expressions of
Sittenfeld’s pro-development record, (2) puffery about
Sittenfeld’s ability to build consensus and pass
initiatives, and (3) pleas for financial support to
Sittenfeld’s campaign. These statements typify the
everyday discourse on public issues between politicians
and their supporters, “‘occup[ying] the highest rung of
the hierarchy of First Amendment values, and …
entitled to special protection.’” Snyder v. Phelps, 562
U.S. 443, 452 (2011). But as Sittenfeld’s case makes
clear, such statements can nonetheless serve as the basis
for unlawful and unjust prosecutions.
First, the government relied on Sittenfeld’s
assertions touting his pro-development record and
policy goals. For example, the government targeted
Sittenfeld’s assertion that “[i]n seven years, [he] voted
in favor of every single development deal that’s ever
been put in front of [him]” along with his expressed
commitment to being “super pro-development and
revitalization[.]” Jury Instructions/Closing Arg. Tr.,
R.251, PageID#5006-5007.
But descriptions of a
candidate’s policy stance and record on issues of interest
are emblematic of crucial political discourse; indeed,
these are precisely the statements that constituents and
prospective supporters are entitled to hear.
See
Citizens United, 558 U.S. at 339.
14
Public officials routinely publicize their record,6
including how they have voted or intend to vote.7 Salient
issues especially attract trade associations and interest
groups, which serve an important role in our democracy.
As this Court has repeatedly recognized, “[e]ffective
advocacy of both public and private points of view,
particularly controversial ones, is undeniably enhanced
by group association.” Americans for Prosperity
Found. v. Bonta, 594 US 595, 606 (2021) (alteration in
original) (quoting NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 460 (1958)). Not only do interest groups
and political action committees rate and endorse
officials, but they also provide financial support to public
officials.8 Such support follows public officials who have
established “lengthy and proven record[s]”9 and who
have “vocal[ly] advocate[d]” for the policy positions that
6
Beland, Mayor Wu Kicks Off Reelection Campaign in South
End, WBUR News (Apr. 5, 2025), https://tinyurl.com/46tpxe7h
(“Speaking to supporters[,] … Wu touted her first term’s record —
describing her efforts to fight off state receivership of the Boston
public schools, improve transportation for seniors, expand access to
the city’s arts institutions, and reduce deadly violence.”).
7
See, e.g., Voting Record, Senator Elizabeth Warren,
https://tinyurl.com/mw8edjr5; Press Release, Senator Joe Manchin,
Manchin to Oppose Every EPA Nominee (May 10, 2023),
https://tinyurl.com/4e5nfvuk.
8
See, e.g., Friedman, Oil Interests Gave More Than $75
Million to Trump PACs, New Analysis Shows, NY Times (Nov. 1,
2024), https://tinyurl.com/3e6eusev; Frazin, Climate Groups Say
They’re Putting $55M Into Pro-Harris Ads, The Hill (Aug. 19,
2024), https://tinyurl.com/bdzjktr7.
9
Landry Receives NRA Endorsement, Jeff Landry for
Governor, https://tinyurl.com/5n6uaenu.
15
are central to an interest group’s objectives.10 And those
interest groups expect that the public officials they
support will continue to advance mutual policy
objectives11 or reject adverse initiatives.12 “Influence
and access ‘embody a central feature of democracy—that
constituents support candidates who share their beliefs
and interests, and candidates who are elected can be
expected to be responsive to those concerns.’” FEC v.
Cruz, 596 U.S. 289, 308 (2022); McCutcheon, 572 U.S. at
191 (plurality op.). Given his pro-development record, it
is natural that Sittenfeld would attract support from
like-minded individuals and associations interested in
development. This very fact was what made him an
eventual target in the FBI sting operation.
Second, the government relied on Sittenfeld’s
opinions and aspirations about his ability to build
10
Press Release, EMILYs LIST Endorses Kamala Harris for
President,
EMILYs
List
(July
21,
2024),
https://tinyurl.com/5kuy556b (EMILYs List endorsed Harris,
noting, “She has been an especially powerful advocate for abortion
rights, and broke new barriers as the first Vice President to visit an
abortion provider and to invite abortion providers to the White
House.”).
11
Landry Receives NRA Endorsement, supra note 9
(“Clearly, if elected the next governor of Louisiana, you will
continue to stand against those who seek to diminish our freedoms
by ultimately destroying the Second Amendment and our Right to
Keep and Bear Arms.”); ENDORSEMENT: Planned Parenthood
Action Fund Backs Alsobrooks, Mucarsel-Powell for Senate (May
21, 2024), https://tinyurl.com/3cubyydu (“Debbie Mucarsel-Powell
will be an outspoken champion for abortion rights in the Senate. She
is a vocal opponent of Florida’s 6-week abortion ban.”).
12
Ikonomova, Blue Cross Has Given More Cash To Whitmer
Than Any Michigan Gov Candidate In Past Decade, Detroit Metro
Times (Aug. 2, 2018), http://tinyurl.com/2h8t3uuj.
16
consensus and be an effective advocate. Specifically, the
government identified Sittenfeld’s statements that he
“can deliver the votes,” Jury Instructions/Closing Arg.
Tr., R.251, PageID#5011, “‘[is] ready to shepherd the
votes,’” id. at PageID#5012, and “‘can move more votes
than any single other person,’” id. at PageID#5010.
Again, such statements are commonplace in politics.
Members of legislative bodies are constantly vowing
that they can secure the necessary votes or that a certain
measure will “absolutely pass.”13 And at all levels of
elected office, public officials seek to distinguish
themselves by arguing that they, unlike their political
opponents, can “get things done,”14 “deliver” on an
agenda, or “lead [their colleagues] into a consensus.”15
Such aspirational statements signal to constituents the
public official’s priorities and those issues on which he or
she is willing to spend political capital. As this Court has
observed, “‘It is well understood that a substantial and
legitimate reason, if not the only reason, to cast a vote
for, or to make a contribution to, one candidate over
another is that the candidate will respond by producing
13
Slattery & Sullivan, Republicans speak out against US debtceiling deal, in sign of rocky road ahead, Reuters (May 29, 2023),
https://tinyurl.com/5dwpzddt (“‘[The debt ceiling deal] will
absolutely pass. There’s no question about that,’ said Republican
Representative Dusty Johnson, who said he had talked to dozens of
fellow lawmakers.”).
14
A list of 50 things Andrew Cuomo has ‘gotten done’, The
New York Groove (June 5, 2025), https://tinyurl.com/96ddpvde (“I
know how to get things done. Not just plans, plans, plans.”)
15
McGrory, Signs of Democratic Life, Wash. Post (Nov. 14,
2002), https://tinyurl.com/mryds34m (describing Nancy Pelosi as
“the velvet hammer” and quoting her as saying, “I have perfect
confidence in my ability to do this job[.] I know I can lead the
Democrats into a consensus”).
17
those political outcomes the supporter favors.’” Citizens
United, 558 U.S. at 359.
Furthermore, comments like Sittenfeld’s are meant
to project confidence—like a candidate for Speaker of
the House asserting that he expects to prevail16 or a
candidate for city council claiming his experience and
expertise are unparalleled17—rather than to reflect an
actual promise or undertaking of official action. A public
official’s assertion that he “can move more votes than
any single other person” is part and parcel of political
discourse today. An official’s political relationships,18
the clout he has developed, and the ability to move votes
or deliver on an agenda19 are critical to how he promotes
himself—that is, whether he is a “‘winning endeavor.’”
Jury Instructions/Closing Arg. Tr., R.251, PageID#5007.
Regardless of whether such statements are earnest
expressions of political objectives or are self16
See Irwin, Johnson Expresses Confidence Ahead of Friday’s
Speaker Vote, The Hill (Jan. 2, 2025), https://tinyurl.com/3jerscfy
(“Johnson said … ‘I think we’ll get it done,’ he continued. ‘I really
do.’”).
17
Palmer, East Lansing City Council Races Features Eight
Candidates, Numerous Issues, Lansing State Journal (Nov. 4,
2023), https://tinyurl.com/2jtenhbz (“It can be fairly said that no
other member of the council has my experience in economic
development, zoning, urbanism, my depth of knowledge on those.”).
18
See, e.g., Joe Biden The former vice president wants to
restore the soul of America, N.Y. Times (Jan. 4, 2020),
https://tinyurl.com/dfreychh (Biden campaign speech claims Biden
has “met personally every major world leader in the last 40 years.”).
19
CNN Interview with Rep. Pramila Jayapal (Sept. 20, 2021,
time 4:25-4:33), http://tinyurl.com/mr278ur4 (“Regardless of how
people feel about the infrastructure bill, we would deliver our votes
for the infrastructure bill. We would deliver the entirety of the
president’s agenda to him for his signature.”).
18
aggrandizing, this Court should put an end to a rule that
threatens to convert ordinary political puffery into
promises subject to prosecution.
Third, the government relied on several statements
in which Sittenfeld urged donors to back him while
attempting to dissuade them from supporting his rivals.
The government invoked Sittenfeld’s insistence on
“stop[ping] the developers from supporting” multiple
candidates. Jury Instructions/Closing Arg. Tr., R.251,
PageID#5004, and Sittenfeld’s remarks made to a
cooperating witness: “I mean, you don’t want me … to
be like, ‘hey [Chin], like love you but can’t’[.] I want
people to support me … if a candidate doesn’t want
people to support them, they’re a shitty, dumb
candidate.” Indictment, R.3, PageID#30. While these
statements do not reflect Sittenfeld’s political positions
or record, they still embody the pleas made by public
officials to potential donors.
Although the government made much of Sittenfeld’s
suggestion that his donors should not hedge because it
was
not
in
“[their]
interest,”
e.g.,
Jury
Instructions/Closing Arg. Tr., R.251, PageID#5002,
public officials have the right to discourage funding of
their political opposition. Indeed, it is natural that they
do so. After all, successful fundraising is key to both
winning an election and wielding political cachet once in
office.20 Former Texas State Senator Robert Duncan
recounted a pivotal fundraising point for his campaign,
where he met with Karl Rove and then-Governor
George Bush, who expressed concerns about Duncan’s
20
Bustillo, supra note 4 (“[E]veryone’s pretty well funded and
spends a lot of time fundraising[.] [Y]ou have to keep up with your
opposition to get your message out”).
19
fundraising efforts. Recognizing the urgency of his
situation, at his next meeting with a group of lobbyists,
Duncan pleaded, “Are you with me or against me?” He
wanted to know, “Would they support me, would they
raise the money necessary from their clients?”21
Leaders from both political parties have long been
perceived as using their fundraising prowess to prop up
allies and punish enemies. Former Speaker of the House
Kevin McCarthy said Democrats failed to support his
speakership “because he could raise the money to oust
them in 2024,” quoting Democrats who reportedly told
him, “Why would we help the person that becomes our
executioner?”22 That Sittenfeld urged donors to invest
in him and refrain from empowering his opponents is
another example of commonplace, protected political
speech that will be chilled unless this Court intervenes.
Given the stakes associated with campaign
fundraising, public officials are bound to make
exaggerated or aggressive appeals for support. Those
statements should not sustain a bribery or extortion
conviction. Indeed, a rule that allows prosecutions to
rest on inartful statements both sweeps up the
fundraising pleas that reverberate across the country
(and that are not elicited as part of a sting operation) and
supplants the government’s requirement to prove an
explicit agreement. Ratifying prosecutions that rely on
these commonplace statements would chill speech and
perversely permit the targeting of new politicians and
21
Lemann, The Controller, New Yorker (May 4, 2003),
https://tinyurl.com/y8mk8cwc.
22
Ackley, McCarthy’s Money at Stake for House GOP in
Speaker’s Downfall, Bloomberg Government (Oct. 4, 2023),
https://tinyurl.com/mt74pky7.
20
donors who lack the polish and experience required to
navigate discussions that demand nuance.
IV. THE WEAKENED MCCORMICK STANDARD APPLIED
BELOW INVITES ARBITRARY OR POLITICALLY
MOTIVATED PROSECUTIONS
The lower courts’ diluted reading of McCormick also
invites misguided (at best) or politically motivated
prosecutions. Even the most well-meaning prosecutors
are susceptible to confusing the various facets of bribery
and corruption elements and pursuing cases on
something less than an explicit quid pro quo. More
pernicious, however, is the risk of discriminatory
prosecutions. Such a concern is far from speculative.
The Bill of Rights itself is proof that our Founders
“understood that historically, government prosecutors
could become extremely abusive of individual rights.”23
Justice Robert Jackson warned of the potential for
targeted prosecution while serving as U.S. Attorney
General:
If the prosecutor is obliged to choose his
cases, it follows that he can choose his
defendants.
Therein is the most
dangerous power of the prosecutor: that
he will pick people that he thinks he
should get, rather than pick cases that
need to be prosecuted. … It is in this
realm in which the prosecutor picks some
person whom he dislikes or desires to
embarrass, or selects some group of
unpopular persons and then looks for an
23
Barth, Criminal Prosecution in American History: Private
or Public?, 67 S.D. L. Rev. 119, 147 (2022).
21
offense, that the greatest danger of
abuse of prosecuting power lies. It is
here that law enforcement becomes
personal, and the real crime becomes
that of being unpopular with the
predominant or governing group, being
attached to the wrong political views, or
being personally obnoxious to or in the
way of the prosecutor himself.24
This Court is acutely aware of such risks. It has
repeatedly declined to accept the government’s
“assurances that prosecutors and grand juries will not
permit political or baseless prosecutions” and affirmed
the longstanding principle that that it does not defer
“significant constitutional questions based on the
Government’s promises of good faith.” Trump v.
United States, 603 U.S. 593, 637 (2024); see also, e.g.,
McDonnell v. United States, 579 U.S. 550, 576 (2016) (A
court “cannot construe a criminal statute on the
assumption that the Government will ‘use it
responsibly.’”)
This risk of politically motivated prosecution is
especially alarming as partisan divides continue to
widen in our country, and where disfavored opinions or
political actors are targeted in unprecedented ways and
with increasing frequency.25 The standard espoused by
24
Jackson, The Federal Prosecutor, Delivered at The Second
Annual Conference of United States Attorneys (Apr. 1, 1940),
https://tinyurl.com/mt3ynxrm.
25
See, e.g., Slip Op., Libby v. Fecteau, No. 24A1051 (U.S. May
20, 2025, 605 U. S.__ (2025) (granting injunction to require the clerk
of the Maine House of Representatives to count lawmaker’s votes
following censure for social media post about transgender athlete);
Peek, Biden’s Alarming Harassment of Elon Musk, The Hill (Dec.
22
the Sixth Circuit ratified a conviction based on
underlying campaign contributions that were otherwise
lawful and supporting evidence consisting of everyday,
protected political statements. Interpreting a criminal
statute in such an “unconstitutionally vague [way],”
Cramp v. Board of Public Instruction of Orange
County, 368 U.S. 283, 284 (1961), opens the door for
prosecutors to select targets based only on ‘“their
personal predilections,”’ Kolender v. Lawson, 461 U.S.
352, 358 (1983). Indeed, such a standard provides
ammunition to overly zealous prosecutors to target the
speech and policy preferences of public officials and
candidates for offices at all levels, including the
President and Vice President.26 In the current moment,
such a blank check is especially frightening to
unsuccessful political candidates or those espousing
dissenting views.
Aside from the obvious injustice of indicting and
convicting an innocent person, a political prosecution
presents numerous harms to our democracy. The real
possibility of unfair, overbroad enforcement chills
political speech, both by candidates and their
supporters. “Officials might wonder whether they could
15, 2023), https://tinyurl.com/ef8e642c (describing
administration’s legal challenges against Elon Musk).
26
Biden
See Dawsey, Trump makes sweeping promises to donors on
audacious fundraising tour (May 28, 2024), https://tinyurl.com/2dhch4pb; Democrats, Veepstakes: Trump and J.D.
Vance Will Give Ultra-Wealthy Donors Whatever They Want if
They Bring Their Checkbooks (June 20, 2024), https://tinyurl.com/45eyfkzc (collecting Trump statements to donors and
characterizing Trump-Vance fundraising efforts in Ohio as “Trump
... parading his VP contenders around for campaign cash from billionaire buddies as they all double down on a disastrous MAGAnomics agenda[.]”).
23
respond to even the most commonplace requests for
assistance, and citizens with legitimate concerns might
shrink from participating in democratic discourse.”
McDonnell, 579 U.S. at 575. Such consequences are
antithetical to our representative system of
government. And even reports or insinuations of
political targeting and prosecutions are likely to take a
toll on our system.27 Political prosecutions erode public
trust in the justice system and our government more
broadly.
27
Penn & Spoto, Trump’s LA Prosecutor Orders Cases His
Staff Say Lack Evidence, Bloomberg Law (July 29, 2025),
https://tinyurl.com/suhw38hw (“[Essayli] talked to staff about using
the position to criminally charge politicians, judges, or other officials
who block the Trump agenda”); Donald J. Trump
(@realDonaldTrump), Truth Social (July 26, 2025, 7:45 p.m.),
https://tinyurl.com/2nz56prn (asserting Democrats paid Beyoncé
for illegal endorsement and declaring, “They should all be
prosecuted!”).
24
CONCLUSION
The Court should grant the petition.
Respectfully submitted.
DONNA M. FARAG
AMANDA N. BAIRD
WILMER CUTLER PICKERING Counsel of Record
CHARLES C. SPETH
HALE AND DORR LLP
MEGAN O. GARDNER
60 State Street
WILMER CUTLER PICKERING
Boston, MA 02109
HALE AND DORR LLP
2100 Pennsylvania Ave., NW
Washington, DC 20037
(202) 663-6000
donna.farag@wilmerhale.com
AUGUST 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.