In his first in-court attack on his federal indictment, labor leader John J. “Johnny Doc” Dougherty has urged a judge to dismiss charges that he bought Philadelphia City Councilman Bobby Henon’s vote on key issues with a union salary, calling the allegations a “feeble attempt at criminalizing the legislative process.”
Prosecutors may claim to have exposed a corrupt relationship between the men, but all they have accomplished, defense lawyers argued in filings late Wednesday, is to outline a “normal and lawful lobbying of a City Council member.”
“There is nothing out of the ordinary, let alone unlawful, about Mr. Henon’s continued employment from Local 98″ of the International Brotherhood of Electrical Workers, attorney Henry E. Hockeimer Jr. wrote, referring to Dougherty’s union. He added later: “Nothing about this employment arrangement amounts to bribery.”
The argument mirrors broad attacks launched in January by Henon’s lawyer, Brian J. McMonagle, at a news conference a day after prosecutors charged the Council member and Dougherty in a sprawling corruption case.
But Wednesday’s filing is the first time the defense has put forth such claims in court in an attempt to spare both men from a costly trial and the threat of prison should they be convicted.
What U.S. District Judge Jeffrey L. Schmehl will make of their assertions remains to be seen. No hearing had been scheduled to consider the defense motion as of Thursday, and prosecutors had not yet responded to it in court.
Still, government lawyers can be expected to push back hard.
They have portrayed Henon, a union electrician elected in 2011 on a wave of Local 98 money, as a corrupt politician who sold his Council seat in exchange for a $73,000-a-year, do-nothing job. Prosecutors allege he then served as Dougherty’s puppet, backing votes and advancing government actions that benefited the labor leader’s personal and professional interests.
In its motion Wednesday, Dougherty’s legal team scoffed at that depiction, arguing that at worst Henon’s salary posed a conflict of interest — but one no different from those facing the seven other members of Council who hold outside jobs. City ethics rules allow Council members to hold such posts as long as they disclose them on legally mandated filings, something Henon routinely did.
“The indictment makes clear the government is attempting to punish a conflict of interest it (but not the City of Philadelphia) considers an inappropriate outside-employment arrangement between Mr. Henon and Local 98,” Hockeimer wrote.
What’s more, he argued, the government’s theory of the case runs afoul of two key U.S. Supreme Court rulings that have limited the scope of public corruption prosecutions in recent years.
The first, involving former Enron CEO Jeffrey Skilling, held that such convictions must be based on evidence of bribes or kickbacks, not just a conflict of interest.
Although prosecutors say Henon’s union salary — and the little, if anything, he did to earn it — is a bribe, Hockeimer maintained Wednesday that the timing doesn’t add up.
Henon assumed his post as Local 98’s political director in 2003, eight years before he was elected to Council. If the job was meant as a bribe, the defense argued, it came well before Henon had anything to offer Dougherty in exchange.
The second Supreme Court ruling cited by Dougherty’s defense — one centered on the case of former Virginia Gov. Robert F. McDonnell — has bedeviled prosecutors since it was issued in 2016.
The justices held that federal bribery laws do not cover gifts exchanged for routine courtesies such as setting up meetings, hosting events, or making calls on behalf of constituents. To prove political bribery, prosecutors now must show that a politician took some official action in exchange for benefits received.
The Dougherty indictment is filled with accusations that the union boss leaned on Henon again and again to back policies or actions that benefited his union.
At Dougherty’s request, Henon allegedly forwarded a 2015 complaint that led to the shutdown of a nonunion installation project at Children’s Hospital of Philadelphia. That same year, he purportedly put Dougherty in the room when Comcast renegotiated its franchise agreement with the city — a deal that resulted in a lucrative contract for a company owned by one of the labor leader’s friends.
But in both instances, Dougherty’s lawyers maintained in their filing, prosecutors failed to link Henon’s decisions to a specific vote or action that went beyond something he would have done for any other constituent. In other instances, they said, the indictment draws on voluminous wiretap recordings to show Henon promising to take some action at Dougherty’s request but does not specifically say whether the Council member actually followed through.
“While these allegations may set forth the circumstances of a pro-union elected official taking pro-union actions,” Hockeimer wrote, “they fail in every respect to set forth an unlawful quid pro quo.”