PG Sittenfeld ’07 Looks to Supreme Court to Keep Him Out of Prison

The nearly five-year legal saga of Alexander P.G. Sittenfeld ’07, the former rising star of the Cincinnati City Council who was convicted of bribery in a case that legal experts across the political spectrum say raises historic constitutional questions, appears headed to the Supreme Court.

In February, nine months after hearing arguments in Sittenfeld’s appeal, a three-judge panel of the Sixth Circuit U.S. Court of Appeals ruled 2-1 to uphold the conviction. But in a further twist in a case that has been full of them, all three judges wrote separate opinions inviting the Supreme Court to step in and clarify the murky points of law on which Sittenfeld’s legal fate rests.

Now Sittenfeld’s pro bono lawyers are preparing to formally ask the Supreme Court to do just that. Their petition is expected by early June, and the Supreme Court could decide whether to take the case by the fall. For now, Sittenfeld, 40, who served less than five months of a 16-month sentence in a minimum-security federal prison camp before the appeals court ordered him released last May pending his appeal, remains free. He and his wife, Sarah, a radiation oncologist, are expecting their third child. If the Supreme Court denies his petition, or upholds his conviction, he would likely be returned to prison.

Sittenfeld, who declined to be interviewed Monday, wrote in an email to friends and family a few days after his conviction was upheld: “I never want to minimize that aspects of this feel cruel and insane and are incredibly hard on our family… . There are moments when this all feels beyond senseless and is a heavy load to carry. The flip side is that, fortunately, it has come to feel second nature for me not to waste time wallowing (at least not more than a few moments every now and then), and to instead, as my Jesuit friend Cyrus taught me to do, ask, ‘What and where is the invitation in this unwanted situation?’”

Sittenfeld was convicted of accepting a $20,000 contribution to his political action committee from an undercover FBI agent posing as the developer of a speculative project in downtown Cincinnati. Another developer, a friend of Sittenfeld who had played for the Cincinnati Bengals, was also secretly working for the FBI. The FBI recorded Sittenfeld telling his friend that he could not be part of an illegal quid pro quo of accepting money in exchange for support for the development project. Prosecutors charged him with entering into just such a deal, while Sittenfeld argued that he accepted the donation as general support for his upcoming mayoral campaign and his overall pro-development stance.

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The case raises the elusive and rarely litigated question of when a politician’s constitutionally protected promotion of his values and intentions crosses the line to become a corrupt promise. Unlike many political bribery dramas, Sittenfeld sought only a campaign contribution, not personal enrichment. When the FBI agent tried three times to give the money in forms that would have violated contribution laws — cash, money orders, corporate checks — Sittenfeld turned down the funds, until the agent offered the donation properly. Sittenfeld’s lawyers assembled an illustrious group of former prosecutors and federal officials, including three former U.S. attorneys general, who signed briefs supporting his appeal. 

“This case comes with twists,” Judge John Nalbandian wrote in the majority opinion upholding Sittenfeld’s conviction. Among them: “Sittenfeld ended up in a kind of Truman Show … . All the major players, except for Sittenfeld, were working for or with the government — that is, these were paid actors working to incriminate Sittenfeld. And despite nearly every relevant conversation being recorded, the investigation didn’t yield overwhelming evidence.” Also, the instructions to the jury by the trial judge were “impermissibly broad.”

Based on that evidence and those instructions, the jury convicted Sittenfeld on two counts, while acquitting him on four others. Nalbandian found that the verdict was a legitimate assessment of the evidence, even though other interpretations more favorable to Sittenfeld could have been reached. He rejected the contention of Sittenfeld’s attorneys that the evidence fell short of equipping the jury to weigh the constitutional principles that this case required. In a footnote, Nalbandian appeared to signal the higher court: “Whether we ought to require more of the government given the First Amendment interests and the realities of our political system is a question for the Supreme Court. At this point, [the legal precedents] are nearly 35 years old and it may be time for the Court to revisit or refine the doctrine.”

The pages of Judge Eric Murphy’s concurring opinion seem infused with judicial anguish. He asks: Why is Sittenfeld’s case different from any politician who exercises his First Amendment rights by seeking support based on a pledge to overturn, say, Barack Obama’s health care law or Donald Trump’s tax cuts? “I do not have good answers to these questions because the Supreme Court has adopted a ‘vague’ ‘line’ to separate protected political speech from illegal bribery,” Murphy wrote. “Existing precedent … maximizes (rather than minimizes) the constitutional concerns.”

Sittenfeld’s case turned, in part, on the difference between an “explicit” quid pro quo and an “express” quid pro quo. “So what divides an explicit agreement from an express one?” Murphy asks. “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.”

Still, Murphy held that it was not the appeals court’s role to set aside precedent or amend constitutional doctrine — that’s a job for the Supreme Court. “For one thing, the Supreme Court created this dilemma,” he wrote. “Only the Supreme Court” can provide “a principled reading of the laws” to resolve First Amendment questions raised in Sittenfeld’s case, so Murphy joined Nalbandian in upholding the conviction.

Dissenting from the majority, Judge John Bush maintained that Sittenfeld’s conduct was not corrupt: “Even though the government tried to get Sittenfeld to take the bribery bait, he never bit. No illegal agreement ever materialized. Sittenfeld accepted the campaign contribution for what he thought it was — a campaign contribution — and not the product of any explicit quid pro quo for official acts.” He adds: “Further Supreme Court guidance would help lower courts, particularly for cases like this one where there is no unambiguous evidence of a quid pro quo and no independent indicia of corrupt intent, like personal gifts or a connection to an independently criminal scheme.”

Sittenfeld’s conviction should be overturned, Bush concluded, because “I do not believe we must do nothing until the [Supreme] Court does something.”

Kenneth Katkin ’87, a professor of constitutional law at Northern Kentucky University, who has been closely following the case, says that while the Supreme Court rejects most requests to review cases, Sittenfeld’s petition stands a better-than-even chance of attracting Supreme Court interest.

“The court has been expressing a lot of discomfort with the way public corruption law is being applied to campaign donations and campaign speech,” Katkin said. He added that it is highly unusual — something “I’ve almost never seen before” — that all three judges independently “said the Supreme Court needs to take this case,” making it more likely that the court will want to look at the case.

Sittenfeld, a Democrat, was once considered to be on a path to become Cincinnati’s mayor and to run for higher office. After his conviction in 2022, he set aside his political dreams and began looking for ways to help others through writing or other forms of service. He wrote in a letter to the judge before his sentencing: “There has been a dramatic reordering of my ambitions.” He elaborated in an interview with PAW last spring. “The biggest goals for my life are I want to be a deeply involved husband and father, and I want to be a committed Christian. And then, if I’m doing those two things, let whatever worldly path unfold.”