On Wednesday in Manhattan federal court, the same lawyer who represented de Blasio and got that outcome will try the same argument against the same federal prosecutor’s office, but for a different client — ex-Lt. Gov. Brian Benjamin.

Court filings suggest attorney Barry Berke will trot out his “de Blasio defense” at a hearing before U.S. District Court Judge J. Paul Oetken, arguing that all pending charges against Benjamin — that he solicited campaign donations from a deep-pocket donor in exchange for steering state money to a nonprofit controlled by the donor — should be dismissed outright.

“This is the most aggressive purported political bribery case ever attempted,” Berke charged in court papers, demanding that the case be tossed out before it even goes to trial.

In April, Benjamin was arrested on a five-count indictment charging him with bribery and falsifying documents. He resigned his state position soon after and vowed to fight the case.

The indictment came more than a year after THE CITY first reported that suspicious donations were made to Benjamin’s city comptroller campaign — some by people who said they had never heard of the candidate — and were potentially eligible for generous government matching funds.

The indictment specifically ties campaign donations raised for Benjamin by a Harlem property owner, Gerald Migdol, to a $50,000 state grant Benjamin arranged for a nonprofit Migdol ran, Friends of Harlem Public Schools. That arrangement, according to the prosecution, was a plain and simple bribe.

The timing of the transactions, they argue, makes the case.

Benjamin first sought campaign checks from Migdol in March 2019, but Migdol complained he’d have trouble providing them because he’d be seeking money from the same donors who give to his nonprofit. According to the indictment, Benjamin told the developer, “Let me see what I can do.”

Three months later, Benjamin informed Migdol he’d obtained approval for a $50,000 grant for Friends of Harlem Public Schools. Shortly after, Migdol arranged for $25,000 in campaign checks from two of his relatives and a limited liability corporation he controls for Benjamin.

After the state-funded check arrived for Migdol’s group, Migdol arranged for multiple small-dollar checks to Benjamin’s then-campaign for city comptroller. Migdol was later indicted and has pleaded guilty to bribery charges. He is now cooperating with prosecutors in the case against Benjamin.

Contributions for favors

Fighting back, attorney Berke cited his own work on de Blasio’s behalf. He first notes in court papers that Benjamin — like de Blasio — never received anything from Migdol for “personal gain.”

He then quoted the Manhattan federal prosecutors’ own words against them.

“This is a fact that the very office pursuing this case [against Benjamin] has previously acknowledged,” Berke wrote. “Five years ago, in the face of similar legal and factual challenges, the acting United States attorney for the Southern District of New York publicly explained the reasons the office was declining to prosecute the then-mayor of New York after an extended investigation of the mayor’s fundraising activities.”

Berke then highlighted part of Kim’s March 2017 statement announcing no charges against de Blasio:

“In considering whether to charge individuals with serious public corruption crimes,” Kim wrote, “we take into account, among other things, the high burden of proof, the clarity of existing law, any recent changes in the law, and the particular difficulty in proving criminal intent in corruption schemes where there is no evidence of personal profit.”

Berke did not mention another part of Kim’s statement, which revealed that prosecutors “conducted a thorough investigation into several circumstances in which Mayor de Blasio and others acting on his behalf solicited donations from individuals who sought official favors from the city, after which the mayor made or directed inquiries to relevant city agencies on behalf of those donors.”

Berke particularly cited the 2015 case McCormick v. United States, in which the U.S. Supreme Court ruled that if the alleged bribe is a political donation, the prosecution must prove that the elected official obtained it by making explicit promises of an official act for the donor. Berke contends Benjamin’s solicitation of campaign checks was not made explicitly in exchange for providing state funds for what he called “legitimate constituent services” to Migdol’s charity.

He contends that prosecuting elected officials for this kind of arrangement “will effectively criminalize or certainly chill the kinds of lawful interactions between our elected officials and their constituents that happen every day in this country.”

In response, prosecutors cited several court rulings, including the case of Albany County Executive James Coyne, convicted in 1992 of accepting a $30,000 bribe from an architect in exchange for getting him the job of designing a county-funded arena in downtown Albany.

The court ruled that it was enough that Coyne accepted the money “knowing that the payment related to his using his influence as County Executive” on the architect’s behalf.

Ultimately Berke cited a colorful catalog of cases against a wide variety of politicians charged with corruption, some of whom — such as disgraced former Assembly Speaker Sheldon Silver — were ultimately convicted.

He also zeroed in on the landmark case of Robert McDonnell, a former Virginia governor who was convicted of taking $175,000 in “loans, gifts and other benefits” from a businessman who sought McDonnell’s help obtaining a state university-supported study of a nutritional supplement he was marketing. The governor arranged meetings for the businessman, and held a reception at the governor’s mansion for the donor’s firm. Prosecutors called McDonnell’s support for the donor “official acts.”

In 2016, however, the Supreme Court overturned  McDonnell’s conviction, holding that arranging meetings and setting up receptions did not constitute “official acts.”

“All of these decisions explicitly or implicitly recognize, prosecution of political figures based on campaign contributions poses great risks to our democracy,” Berke contended.

THE CITY is an independent, nonprofit news outlet dedicated to hard-hitting reporting that serves the people of New York.

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