George Norcross is guilty of dropping F-bombs. And that’s about it | Opinion

Extortion is a crime of force, threats, violence, and coercion through unlawful means. It is not a crime of hard bargaining, aggressive business practices, or foul language. This is an obvious, intuitive legal line – and one the prosecutors pursuing George Norcross seek to obliterate.

The New Jersey Attorney General has charged Norcross and several of his business associates with a range of extortion, racketeering, and official misconduct offenses. While bringing charges fit for Tony Soprano, the indictment doesn't allege the violence, threats, bribes, and kickbacks that were Tony's stock in trade. There are no broken legs or visits from Paulie Walnuts. Just some cursing that might stand out in Topeka, but which I suspect is another day at the office in South Jersey.

The state's 111-page indictment rests almost entirely on the rhetoric Norcross used in a series of real estate transactions with other New Jersey businessmen. The state's principal theory is that Norcross and the other defendants "extorted and coerced" another real-estate developer into agreeing to sell certain (unused) property rights along the Camden waterfront (for millions of dollars).

The "smoking gun" evidence involves no guns; it is that Norcross told his counterparty there would be "consequences" if that counterparty squelched on their deal, and that Norcross said, "If you f**k this up, I'll f**k you up like you've never been f**ked up before. I'll make sure you never do business in this town again."

Like Claude Rains's surprise at discovering gambling in an unlicensed casino, the state's prosecutors are apparently shocked that New Jersey businessmen sometimes curse and threaten each other during business negotiations.

I am more realistic about the world, and suspect the New Jersey courts will be, too.

From where I sit, there's little daylight between the Norcross negotiations and the time a driver on the Jersey Turnpike decided to "negotiate" with me over what lane I should be driving in. And yes, I yielded to his points about my fitness for the slow lane.

Perhaps unsurprisingly, the law does not support imposing Sunday school rules on all business transactions in the Garden State. Courts have uniformly held that the laws at issue – fundamentally based on extortion – do not extend to "hard bargaining" within an arms-length business transaction. Indeed, the official commentary on New Jersey's criminal code specifically carves out "threats" like those here from the state's extortion laws.

And for good reason. Our free-market system is based on a robust marketplace; and that marketplace works from competition, which sometimes involves leverage, arm-twisting, and hard-nosed tactics. Aggressive negotiating tactics are not crimes - they are capitalism. In trying to police the rhetoric that businessmen use in their negotiations, the state is stretching these criminal statutes beyond recognition.

The indictment also accuses Norcross of "official misconduct," but this charge makes even less sense. The only public official involved – former Camden Mayor Dana Redd - is barely mentioned. And her alleged "misconduct" is temporarily not returning a real estate developer's phone calls, at the behest of Philip Norcross (George's brother). Temporarily ghosting a developer is not, to say the least, a misuse of office – i.e., the commission of an unlawful act or the breach of a legal duty. It is a routine exercise of discretion to not take a call. I do it all the time.

Bringing such serious charges on such flimsy bases is dangerous. If the state's primary theory succeeds, it would cast a pall of prosecution over everyday business dealings across New Jersey. It would put prosecutors in the place of deciding when hardball negotiations become criminal offenses, empowering the Attorney General to set civility codes for doing business – with jail awaiting any businessman who is too mean.

The defendants have moved to dismiss the state's indictment, and from what I can tell, that motion should be granted. Getting yelled by at counterparties and having calls go unanswered is life in the big city, not a ticket to the big house.

If someone involved in this case committed actual crimes, the state should pursue them. But it should not concoct crimes from thin air to take down a longstanding target or to get headlines. And it sure looks like that's what is happening here.

James Burnham is a former senior official at the White House and Department of Justice and is the principal at King Street Legal. He has represented numerous individuals charged with corruption offenses, including former Virginia Governor Bob McDonnell before the U.S. Supreme Court.