As Jesse Eisinger portrays Preet Bharara in his upcoming book, “The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives,” he was a show pony who adored the spotlight and went for the low hanging fruit to become a public darling. The biggest notch on Preet’s gun was the former leader of New York’s Assembly, Shelly Silver. Silver was convicted on seven counts of corruption and sentenced to 12 years in prison.
The Second Circuit reversed and remanded.
It’s not that Silver didn’t engage in the conduct as alleged, but that Shelly Silver was the product of a long New York tradition, its roots going back to Boss Tweed, of New York politicians skirting the dirty. As Appellate Squawk explained at the time:
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.”
As the Supreme Court subsequently ruled* in McDonnell v. United States, Judge Valerie Caproni’s instructions to the jury exceeded the elements of the offense, divorcing words from meaning so that Shelly’s ugly actions would produce another front page for Preet.
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?
It’s not that Silver deserves a good citizenship award, but that this was how New York politicians traditionally paid for their lifestyle.
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.
SDNY will retry Silver. Evidence “was sufficient to prove all the crimes charged against Silver, even under the new legal standard.”
Even the New York Times refused to spin it that flagrantly:
In a unanimous ruling, the panel considering Mr. Silver’s case concluded that given the McDonnell decision, the jury instructions at the former speaker’s trial were erroneous, and that a properly instructed jury might not have convicted him.
While the Second Circuit rejected Silver’s argument that the evidence against him was legally insufficient, such that the case should be dismissed, they similarly held that the evidence failed to suffice so that the error was harmless.
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. We further hold that this error was not harmless because it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for the verdict to stand.
What Shelly Silver did in taking advantage of his office for personal gain was, without a doubt, ugly and reprehensible. It was also what politicians in New York have done forever, because the opportunity was handed them on a silver platter while they were expected to somehow pretend to remain above the fray while this part-time job that only demanded 24 hours per day could pay the bills.
As the Supreme Court held in McDonnell, bribing or paying kickbacks to politicians for the exercise of their authority, a quid pro quo, is a crime. Currying favor with politicians in the hope they would use their clout in a way that serves the interests of those who support him is politics. And it would be a terrible shame if Preet’s old office wasn’t able to live up to his twitter bravado and Preet never got to see his handsome face on the cover of a magazine again.
*While the decision came out after Silver’s conviction, the McDonnell case was already before the Court and it was well-known that a decision as to the vast prosecutorial expansion of culpability beyond the statutory scope of bribery and kickbacks could be rejected by the Supreme Court.