ALBANY – In its precedent-setting decision in the corruption case of former Virginia Gov. Bob McDonnell, the U.S. Supreme Court last year called his actions “distasteful.”
The high court, nonetheless, overturned his conviction.
In characterizing the actions of former New York Assembly Speaker Sheldon Silver, a Manhattan federal appeals court Thursday borrowed the same terminology, noting that “many” people would view “with distaste” Silver’s corrupt actions.
Sour taste aside, McDonnell and Silver were able to get their corruption convictions overturned based on the Supreme Court’s more narrowly constructed definition of what constitutes “official” acts of bribery and honest services fraud by officeholders.
Government watchdog groups on the left and right say New Yorkers are right to be angry that the appeals court overturned Silver's conviction even though the judges acknowledged prosecutors presented “sufficient” evidence that the former Assembly leader violated federal laws pertaining to honest services fraud, bribery and extortion.
"It’s frustrating to the public when a clearly correct decision is reversed on a technicality … It confirms the worst cynicism that people have,’’ said Susan Lerner, executive director of New York Common Cause.
New Yorkers can be angry with the Supreme Court for its McDonnell ruling, as well as Gov. Andrew M. Cuomo and the Legislature for failing again to strengthen state laws to better address political corruption, she said.
“Absolutely, New Yorkers feel they’ve been taken for a ride,’’ added Doug Kellogg, a spokesman for Reclaim New York, a conservative-leaning watchdog group.
The Silver decision “should fuel an anger that is existing already” in the public, he said.
Federal prosecutors said they will move for another trial against Silver, no doubt using the same evidence used in the previous trial that showed Silver enriching himself by using his post as the Assembly speaker to steer millions of dollars to himself.
Former U.S. Attorney Preet Bharara, who brought the case against Silver, tweeted out Thursday: “The evidence was strong. The Supreme Court changed the law. I expect Sheldon Silver to be retried and re-convicted.’’
The evidence was strong. The Supreme Court changed the law. I expect Sheldon Silver to be retried and re-convicted.
— Preet Bharara (@PreetBharara) July 13, 2017
Kellogg, from the Reclaim New York group, said New Yorkers should engage the governor and lawmakers to improve ethics and campaign finance laws.
“They are the last line of defense against corruption,’’ Kellogg said of voters.
The Assembly’s top Republican, Brian Kolb from Ontario County, said the decision “shows that the golden age of Albany corruption is still very much alive.’’
“This is a disappointing and embarrassing day in New York. Sheldon Silver was tried and convicted of fraud, extortion and money laundering. If his actions weren’t illegal, it’s hard to imagine what is,’’ Kolb added.
Assemblyman Michael Kearns, a Buffalo Democrat who sparred with Silver and broke from the Assembly Democratic conference over Silver’s leadership of the 150-member chamber, sharply criticized the appeals court decision.
“This is a defining example of why the public is losing faith in its government institutions,’’ Kearns said.
Former Senate Majority Leader Dean Skelos also awaits a decision on his appeal in his own corruption conviction.
In their appeals, Silver and Skelos found agreement in their legal strategy: The Supreme Court’s decision last year in the McDonnell case should pave the way for reversals of their convictions.
The former Virginia governor was convicted of bribery but the Supreme Court “clarified” the definition of what constitutes an official act in crimes involving honest services fraud and extortion, the appeals court wrote Thursday in its decision. Silver’s appeal was based on a claim that his conviction was wrong because the trial court’s instructions to the jury defined an official act “as any action taken or to be taken under color of official authority,’’ the court noted.
McDonnell and his wife had been charged with taking $175,000 in loans and gifts from a Virginia businessman. While the Supreme Court in June 2016 called the actions involving McDonnell “distasteful” and filled with “tawdry tales of Ferraris, Rolexes and ball gowns,’’ the actions involving McDonnell could not be considered “official” acts. He said a more “limited” definition of what is an official act was required in such cases, still leaving, the court said, “ample room for prosecuting corruption.’’
Silver last year was sentenced to 12 years in prison for using the power of his office to enrich himself with more than $4 million in two separate schemes. He also was ordered to pay a $1.7 million fine.
But the Second Circuit Court of Appeals in Manhattan said the instructions to the Silver jury did not comport with the definition of official corruption the Supreme Court demanded in the McDonnell case. The court ordered Silver's conviction vacated and remanded the case back to the district court for possibly another trial.
“We recognize that many would view the facts adduced at Silver’s trial with distaste. The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty,’’ the appeals court said in its ruling.
Silver's lawyers were pleased.
“We are grateful the court saw it our way and reversed the conviction on all counts," Steven Molo and Joel Cohen, Silver's lawyers in the case, said in a written statement.
Silver also appealed the “sufficiency” of the evidence in his conviction.
“Though we reject Silver’s sufficiency challenges, we hold that the District Court’s instructions on honest services fraud and extortion do not comport with McDonnell and are therefore in error,’’ Judge Jose A. Cabranes wrote in the unanimous decision by the three-judge panel.
The case against Silver was brought by Bharara, who also brought a number of corruption cases against politicians in Albany. The cases against Silver and Skelos were touted as among his crowning achievements in his office’s targeting of elected officials who he said violated the public’s trust.
Acting U.S. Attorney Joon H. Kim, who took over the prosecutor’s office after President Trump fired Bharara, sent a strong signal that the Silver case is not being dropped.
“While we are disappointed by the Second Circuit’s decision, we respect it, and look forward to retrying the case,’’ he said in a written statement.
Kim noted that the court also ruled that the evidence was sufficient to find Silver guilty of corruption.
“Although this decision puts on hold the justice that New Yorkers got upon Silver’s conviction, we look forward to presenting to another jury the evidence of decades-long corruption by one of the most powerful politicians in New York State history. Although it will be delayed, we do not expect justice to be denied,’’ the prosecutor said.
Heastie, Cuomo noncommittal
Silver was convicted of engaging in a quid quo pro scheme in which he used his official position to drive millions to himself through arrangements with two real estate developers and a cancer researcher at Columbia University.
Heastie, a Bronx Democrat who was tapped by his Democratic colleagues to run the Assembly after Silver stepped down in 2015, offered a brief assessment of his predecessor's legal news Thursday. He said, "As I have said, we must respect the judicial process. It is a pillar of our democracy. Today's decision is a part of that process."
After an appearance in Buffalo Thursday, Cuomo did not signal his personal view on the court's decision.
"Let's wait to find out what the final disposition is,'' Cuomo said of the expected retrial.
While watchdog groups condemned the court's decision, one former lawmaker who ultimately beat back prosecutors' attempts to convict him in two corruption trials, said the appeals court rightly determined that "justice was not served" in Silver's conviction.
"It's unfortunate that any over-zealous prosecutor has unlimited resources and time to bring charges and seek convictions. And as these cases are overturned , it’s time that taxpayers demand that limited public resources be put to better use,'' said Joseph Bruno, the former Senate majority leader who served for years cutting deals with Silver while he was in the Assembly.
"I offer my best wishes to the former Speaker and his family and hope that in his case, a new administration and U.S. Attorney refocuses attention on how these offices function with respect to the rule of law and more importantly our constitution,'' Bruno said of President Trump's future decision about filling the top job in the high-profile federal prosecutor's office in Manhattan.