Sittenfeld describes unanimous ruling vacating his 2022 conviction

Appears to be first US case to receive both presidential pardon and Supreme Court vacatur

In a first-person essay published in The Wall Street Journal, P.G. Sittenfeld, a former Cincinnati City Council member, recounted the legal fight that began with an FBI sting operation in 2018 and ended with the unanimous April 6 vacatur of his federal bribery conviction. The essay appears as the new Supreme Court term gets under way and the justices begin considering the roughly 7,000 to 8,000 new petitions they typically receive each term, of which about 1% result in full review and oral argument. The court acts on far fewer criminal than civil cases, according to the essay.

Sittenfeld wrote that the case began in 2018, when he was a longtime member of Cincinnati’s city council with ambitions to become the next mayor. The FBI targeted him in what he called an “elaborate sting operation” in which undercover agents posing as real-estate investors met with him and made campaign donations he believed to be routine and disclosed in public filings. Federal prosecutors indicted him on public corruption charges alleging a quid pro quo.

He turned down a plea deal, which he said offered the possibility of no prison time, and took the case to trial. The proceedings revealed that a former friend — a former Cincinnati Bengals player who had become a local real-estate developer — had gotten into legal trouble and then cooperated with the FBI, according to the account. The friend wore a wire during a phone call in which he proposed obtaining campaign donations in exchange for future supportive votes on a blighted downtown property redevelopment that Sittenfeld already supported on the record.

Sittenfeld wrote that his recorded response was: “Obviously nothing can be illegal.” He “firmly” rejected any possible quid pro quo, using those words, according to the account. The undercover agents subsequently made contributions to Sittenfeld’s political-action committee that were not compliant with campaign finance law; he returned the contributions and walked the agents through how to make proper donations. After the undercovers successfully — and lawfully — tried again, prosecutors charged him with bribery, extortion and wire fraud.

The trial judge said the evidence was “ambiguous,” Sittenfeld wrote. A circuit court of appeals judge would later write that a “rational juror” could not have supported a vote of guilty. On July 8, 2022, the jury acquitted him on four counts and convicted him on two. He was sentenced to 16 months in prison and served 4½ of those months, according to his account. The three Sixth Circuit judges hearing his appeal ordered his immediate release pending the final outcome but did not overturn the convictions, saying Supreme Court review was warranted. During the appeal, Sittenfeld and his wife welcomed two more children, bringing the family to three sons.

Following the trial, three of the top law firms in the country offered to take his case forward pro bono, according to the essay. He chose Jones Day because of its experience arguing cases before the Supreme Court, he wrote, despite the unusual political alignment: he had served in office as a liberal Democrat, and Jones Day is regarded as a conservative-aligned firm. The firm described his prosecution as “the most aggressive attempt in history to criminalize campaign contributions,” according to the firm.

Supreme Court briefs carry strict word limits — 9,000 words for the opening petition, for example — and Sittenfeld’s lawyers had to confine themselves to their core argument: that campaign donations are a form of Constitutionally-protected free speech and that criminalizing them is a clear and dangerous violation of the First Amendment, he wrote. Amici curiae — Latin for “friends of the court” — were essential, and their amicus briefs allowed for supplemental arguments as well as validation from respected names, according to the account.

The amicus coalition Sittenfeld helped assemble included Barack Obama’s former White House Counsel Greg Craig and Donald Trump’s former Attorney General Bill Barr, he wrote. For some amici, he said, he searched the internet for email addresses and sent notes succinctly explaining the appeal.

On the brink of submitting the petition to the Supreme Court, Sittenfeld received a full and unconditional pardon from President Trump, he wrote. The clemency was “surprising” both because he had not applied for it and because he had served as a Democrat. As he later understood it, the pending appeal had brought the case to the attention of the White House Counsel’s Office.

But the pardon did not end the matter. An 1877 Supreme Court precedent called Knote v. United States holds that a pardon does not restore property already seized or paid to the government, and the $40,000 fine Sittenfeld had paid as part of his sentence remained in the U.S. Treasury. He and his lawyers also wanted what had happened to him not to happen to others, according to the account.

The legal team submitted a 38-page petition plus a 284-page appendix, the government submitted a response brief, and Sittenfeld’s team filed a reply, according to the essay. The full packet was distributed to the justices at 10 separate conferences — an unusually high number. In these meetings, the nine justices gather to discuss possible cases with no assistants, clerks, or other attendees present. The vast majority of petitions are distributed at just a single conference, Sittenfeld wrote.

On April 6, at 9:31 a.m., he saw the ruling appear on the Supreme Court’s website: the court had unanimously vacated his convictions through a GVR, a mechanism in which the court grants the petition, vacates the lower court’s ruling and remands the case with instructions to re-review. A GVR does not lead to full oral arguments or create new precedent, according to the essay, but it sends a strong message. In any given year, Sittenfeld wrote, the number of criminal convictions the Supreme Court vacates or overturns can typically be counted on two hands, or even one.

The Sixth Circuit permanently wiped the conviction from his record, and the trial court dismissed the case for good, according to the account. The government was ordered to repay the $40,000 fine. The outcome appears to mark the first time in U.S. legal history that the same case received both clemency from the executive branch and vacatur from the Supreme Court, Sittenfeld wrote.

“I still can’t say with certainty why this prosecution was perpetuated — what portion was attributable to the motivations of individual government agents and what portion to forces of institutional inertia,” he wrote.

The essay was published as a contributor piece in the WSJ. Sittenfeld is a writer and public speaker who lives in Cincinnati with his wife and three sons, according to the article’s biographical note.