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Editorial: The fact remains, Silver abused his office

A federal appeals court on Thursday overturned the felony conviction of former Assembly Speaker Sheldon Silver, ruling that faulty instructions to the jury had tainted the outcome of last year’s trial.

What the court pointedly did not say, however, is that Silver didn’t do the things that the evidence clearly proved. So, whatever happens next – and it should be a new trial – the fact is that the disgraced legislative leader is a crook, at heart if not at law.

Silver was convicted in 2015 of honest services fraud, extortion and bribery and was sentenced to 12 years in prison. As a legal matter, Silver may be not guilty: Due process is both essential and guaranteed. Without it, justice becomes arbitrary. But New Yorkers can be glad that this palm-greaser is no longer in office.

What is more, Silver feels his guilt. He acknowledged it in writing. In pleading for mercy at sentencing, he wrote a letter to the court admitting that he had “failed the people of New York.”

“What I have done has hurt the Assembly, and New York, and my constituents terribly, and I regret that more than I can possibly express,” he wrote. Wrongfully convicted people don’t use those kinds of words. This was the plea of a man who had been cornered and who knew it.

He had cause to regret. Testimony at his trial showed that Silver illegally obtained almost $4 million in exchange for government actions that benefited two real estate developers and a cancer expert. That is to say, he used the levers of government to line his own pockets. Even the appeals court understood that.

Indeed, justices on the United States Court of Appeals for the Second Circuit formally acknowledged that evidence of extortion and honest services fraud against Silver was sufficient to prove his guilt.

The problem, the court said, was that the trial judge’s instructions to the jury fell short of the standard set by the U.S. Supreme Court last year – long after Silver’s trial – when it reversed the conviction of former Virginia Gov. Bob McDonnell.

“We recognize that many would view the facts adduced at Silver’s trial with distaste,” the written decision reads. “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.”

McDonnell had been convicted of bribery, but in throwing out the conviction, 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. Silver’s appeal was based, in part, on a claim that the court defined an official act too broadly in its instructions to the jury.

That’s more than a technicality and, assuming the appeals court to be correct, the ruling was fair. It’s not that Silver isn’t a crook, it’s that the rules regarding jury instructions had changed.

The case was prosecuted by former U.S. Attorney Preet Bharara, who was the scourge of corrupt state politicians before President Trump fired him for reasons that remain suspicious. Acting U.S. Attorney Joon H. Kim all but promised on Thursday to bring the case back to court.

“While we are disappointed by the Second Circuit’s decision, we respect it, and look forward to retrying the case,” Kim said in a written statement. We hope he succeeds, but even if he doesn’t, New Yorkers already have won just by being rid of this man.

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