My pal, Appellate Squawk, is a public defender. While you can dismiss me as a defender of the powerful when accused of a crime, it’s hard to dismiss Squawk. Unlike me, Squawk has no horse in the Shelly Silver race. Shelly, the former speaker of the New York State Assembly, was, without a doubt, a very powerful guy.
The conviction of Mr. Silver, 72, served as a capstone to a campaign against public corruption by Preet Bharara, the United States attorney for the Southern District of New York, which has led to more than a dozen state lawmakers’ being convicted or pleading guilty.
But none had the power, cachet or longevity that Mr. Silver, a Democrat, had enjoyed, and prosecutors sought to make an example of him. They asked that he receive a sentence greater than the terms that had been “imposed on other New York State legislators convicted of public corruption offenses.”
See? Extra time for extra power. Why would Squawk go out on a limb for such a guy? There are two reasons. First, what Shelly did with his power in the Assembly was pretty good for New York. This is reflected in the letters written in support of him at sentence, and Squawk provides a good survey of his life in letters.
The other part of Squawk’s challenge to the demonization of Shelly Silver is that it was no less a smear campaign than happens to people the government and the media decide we’re supposed to hate.
What has Silver done to deserve a murder sentence? You won’t find out from the media, dutifully delivering the prosecution’s press releases. “Bribery,” “kickback,” “extortion,” “money laundering,” “scheme to defraud the public of honest services.” You’d think he was some kind of Godfather putting horse’s heads in people’s beds.
Whether white-collar or no-collar, the names of criminal offenses are designed to conjure up horrifying visions vastly out of proportion to what the prosecution actually has to prove. What could sound more wicked than “Scheme to Defraud the Public of Honest Services”? Visions of public works collapsing because they were built with Mafia cement. Little children going hungry because politicians are stealing their school lunches. But according to Caproni’s Jury instructions, “scheme” means only a plan to accomplish a goal and “defraud” simply means lying. It doesn’t matter if the public didn’t lose any money because of the “scheme.” It’s the idea of being lied to that deprives them of the “intangible right of honest services.”
Having read this, do you know what evil Shelly perpetrated on the people of New York? You know he’s evil, because everybody says so, but you don’t really know why. Corruption? That’s evil. Honest services? That’s a good thing, and so we should want it, have it, are entitled to it. But what did Shelly actually do?
Everybody knows what bribes and kickbacks are: when a public official gets something from someone “in exchange for the promise or performance of an official action.” But in prosecution-land, it doesn’t matter whether the “briber” gave with the intention of getting something back, or whether the official ever did anything for the briber. And even if the official does do something that benefits the briber, it doesn’t matter whether it was also good for the rest of the public. Or that the official would have done it anyway without the bribe. The crime is apparently that the official had thoughts of a quid pro quo.
In Silver’s case, the charge was that a cancer researcher and some big developers referred business to law firms chosen by Silver because they thought Silver might do something in return. The prosecution didn’t have to show that there was anything wrong with the cancer research or the quality of representation by the firms, or that Silver’s referral fees were exorbitant. They didn’t have to show that he did anything for the researcher or developers that he wouldn’t have done anyway. No doubt the public has suffered intangible harm from Silver’s not disclosing the referrals, but is that proportional to throwing him in prison until he’s 84?
Squawk is more lenient than me. We put our citizen-legislators into an impossible position. You see, the job isn’t full-time, and doesn’t get full-time pay, so legislators like Shelly are expected to go earn a living on their own time while simultaneously holding very powerful positions. It’s bad enough that they have to run for office every two years, which means they have to start fundraising the day after they win election for the next election. But they need to earn a living, feed the kids, pay the mortgage, buy clean shirts.
And yes, they want to enjoy a nice lifestyle. Don’t you? They ran for the legislature, not the priesthood.
Shelly was a lawyer, and became “of counsel” to a law firm that did mesothelioma lawsuits. Shelly was a rainmaker for the firm, because he was the friggin’ speaker of the New York State Assembly, and people and businesses sought to curry favor with him. And Shelly got a piece of the action, as do many lawyers, even though they shouldn’t if they don’t do any work. But Shelly’s job at the firm wasn’t about filling in the blanks on forms, but bringing in big bucks. He did it well, and he was able to do it well because of who he was.
This has been the system in place forever. Should Shelly have worked as a barista at Starbucks instead? Hell, he would have gotten $100,000 tips if he had. Because people want to curry favor with powerful people. Is this very wrong? Sure, but then, the wrong is systemic. Pay important people good money, and preclude them from earning any outside money. No, it’s far more complex than that, but that’s the basic idea.
Instead, Shelly Silver will likely die in prison, despite having been a pretty good Speaker of the Assembly, and doing what everyone in his job always did to make a living. But we demand purity of those in power? Figure out how that will work before you approve of Shelly dying in prison. He may not have been a perfect man by any means, but he was pretty darn good and better than most. There are far, far worse, and one will be our president.