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By Greg B. Smith | March 8, 2024

A federal appeals court Friday reinstated bribery charges against former Lieutenant Governor Brian Benjamin, reversing a lower court ruling that found his solicitation of campaign donations after steering state money to a donor was not an explicit case of pay-to-play.

The three-judge panel of the Second Circuit Court of Appeals in Manhattan found that Benjamin’s alleged efforts to seek thousands of dollars in political donations in exchange for allocating state funds to a Harlem youth program run by one of his biggest donors cleared the bar for indictable corruption.

“We conclude that the indictment sufficiently alleged an explicit quid pro quo,” the panel stated, finding that “the fact that the agreement was never stated expressly is immaterial because the existence of the agreement and the clarity of its terms” to Benjamin and the donor “could be inferred from their words and actions.”

The case stems from then-state Sen. Benjamin’s decision in 2019 to run for city comptroller. He reached out to Gerald Migdol, a developer in his Harlem district who’d made previous donations to his campaigns, seeking contributions for his next campaign.

Migdol complained that the political donations would cut into his ability to seek contributions for a nonprofit youth program he was running. In response, Benjamin said, “Let me see what I can do.”

A few months later, Benjamin told Migdol he’d be steering $50,000 to his nonprofit, Friends of Public School Harlem. The day after the State Senate approved the grant to FPSH, Benjamin let Migdol know the money was on its way. Days later Migdol handed Benjamin three campaign contribution checks totaling $25,000 to Benjamin in his senate office.

After presenting Migdol with an oversized $50,000 check for a photo-op, Benjamin pressed Migdol to raise small donations under $250 to help him qualify for public matching funds that provide $8 for every $1 raised by a candidate. Migdol began raising these funds, at times falsifying donor names, a scheme first unmasked by THE CITY.

After that January 2021 article ran, the court noted in its ruling Friday, Migdol ceased pursuing the $50,000 state grant Benjamin had set aside for him.

Benjamin lost his bid for comptroller, but in September 2021 Gov. Kathy Hochul named him as her lieutenant governor running mate. He resigned in April 2022 after he was indicted, pleading not guilty and contesting the basis of the bribery allegations — insisting that they were just the legal interactions of a politician seeking donations from constituents.

Case Closed

In December 2022, Manhattan Federal Judge J. Paul Oetken agreed with Benjamin’s arguments, dismissing the three most serious counts — bribery, theft of honest services and conspiracy — finding that prosecutors had not provided sufficient evidence that Benjamin had received a payment in exchange for an explicit promise or undertaking. The judge ruled that the promise “must be clear and unambiguous and characterized by more than temporal proximity — winks and nods — and vague phrases like ‘let me see what I can do’.”

Oetken also found that concerns about free speech “weigh in favor of a stricter interpretation of the ‘explicit’ quid pro quo requirement.”

In reversing that judge, the Second Circuit panel noted that an explicit quid pro quo does not have to “be expressly stated but may be inferred” and that “there is no reason why it cannot be implied from the official’s and payor’s words and actions.”

The panel acknowledged that candidates need to raise money and are allowed to support legislation that benefits their constituents shortly before or after receiving donations. But, the court ruled, an agreement to obtain funds in exchange for a specific act transforms a First Amendment-protected contribution into an “unprotected crime.”

On Friday Manhattan U.S. Attorney Damian Williams declined to comment on the reinstatement of charges against Benjamin.

Benjamin’s attorney, Barry Berke, continued to call the reinstated charges “false,” adding “the facts are clear that Mr. Benjamin did nothing other than engage in routine fundraising and support a nonprofit providing needed resources to Harlem public schools. We remain confident that Mr. Benjamin will be vindicated in this case, which never should have been brought.”

Migdol, the donor at the center of the case, died last month.

The lower court left intact two other charges relating to Benjamin’s alleged efforts to hide his interactions with Migdol while he was being vetted by Hochul for the lieutenant governor position. Trial on those charges were suspended while prosecutor’s appealed Oetken’s ruling.

This story was published by THE CITY on March 8, 2024.

  brian benjamin, bribery, charges, court