When the law says Sheldon Silver can do what he did, then something is drastically wrong with the law. The same goes for what Dean Skelos did, what Joseph Bruno did, what Bob McDonnell did, what William J. Jefferson and what several others did. All were public officials who betrayed the trust of their constituents but whose felony convictions were overturned by federal appeals courts.
The message to politicians of bad intent is unmistakable: the system doesn’t much care if you’re for sale. That’s a problem anywhere, but it’s an especially pernicious one in New York, where political corruption is endemic.
Prosecutors thought the law was on their side in those cases. Juries had concluded, beyond a reasonable doubt, that the defendants had committed federal felonies. The appeals courts said otherwise. Somewhere, the system fell apart, betraying citizens and benefiting official miscreants. The likely culprit is the law, abetted by the appeals courts, including the U.S. Supreme Court. Something needs to change.
Consider the case against Silver, the former speaker of the New York State Assembly. The jury concluded that he obtained nearly $4 million in payments for official actions that benefited others. That’s called graft. The appeals court threw out the conviction, finding fault with the judge’s explanation of an “official action.”
The problem stemmed from a Supreme Court ruling in the McDonnell case. There, it ruled that an official action must be defined, in part, by formal actions or decisions such as hearings or lawsuits. Simply acting to enrich yourself by abusing your office somehow doesn’t count.
It also didn’t count in the case against former New York State Senate Majority Leader Dean Skelos. He was convicted of bribery and extortion, among other crimes, for demanding that businesses relying on state funding pay hundreds of thousands of dollars to his son Adam for work he didn’t do. It sounds like a script from The Sopranos, but the appeals court, citing the same Supreme Court ruling, said Skelos could walk.
Former Virginia Gov. Robert F. McDonnell, whose case precipitated the court’s tolerance for criminality, had been convicted of 11 felonies in 2014 based on evidence showing he and his wife accepted more than $175,000-worth of loans and gifts from a businessman seeking the state’s help in promoting a dietary supplement.
But there was no “official act,” so the conviction was thrown out, setting the stage for the same to occur in the Silver and Skelos cases.
Some defenders of the Supreme Court’s ruling say the justices merely followed the law and that new, better conducted trials could still produce convictions that would survive review. But not everyone agrees. Former U.S. Attorney Preet Bharara, whose office prosecuted both Silver and Skelos, wrote that the evidence against Silver was “strong” and that the Supreme Court had “changed the law.”
Clearly, something else needs to change. It simply cannot be that politics as usual now includes the ability of highly placed public officials to abuse the public trust in schemes meant to enrich themselves. The trials in question, and others, produced copious evidence of the misuse of public offices. That’s beyond dispute. The need now is to ensure that such conduct is appropriately criminalized.
Unfortunately, there is little reason to believe that will happen. Politicians have to come under enormous pressure before they agree to laws that affect their ability to play fast and loose with their constituents.
New York State officials – who, even in that company, represent a special case – only reluctantly submitted to voters a proposed constitutional amendment that would deprive them of their state pensions upon conviction of a felony related to their public office. But they did and, earlier this month, voters approved it.
So maybe there’s hope. If so, voters will have to insist to federal officials that public corruption is, in fact, a crime.