Prosecutors and Political Corruption

The Second Circuit tosses another major Preet Bharara case.

 
 

Former New York State Assembly speaker Sheldon Silver
Former New York State Assembly speaker Sheldon Silver PHOTO: EDUARDO MUNOZ ALVAREZ/GETTY IMAGES

Has the Supreme Court handed corrupt politicians a free pass? That’s the taunting question following an appellate court’s decision last week to toss the conviction of former New York Assembly Speaker Sheldon Silver in the wake of the High Court’s landmark 2016 McDonnell ruling. We think the answer is no, but prosecutors will have to follow the law better than former U.S. Attorney Preet Bharara did.

Readers may recall that a unanimous Supreme Court overturned the conviction of former Virginia Governor Bob McDonnell because prosecutors had too broadly interpreted the meaning of a corrupt “official act.” The act couldn’t merely be setting up a meeting or hosting an event, even if the politician had received personal gifts from the person who benefitted from the meeting, as Mr. McDonnell had. It must involve a formal exercise of government power and the public official must make the corrupt decision or take the action.

The ruling is an important check on prosecutors who have pursued corruption cases with too little evidence and for routine constituent service. But some prosecutors warned that politicians could get away with anything short of extorting a direct bribe. They’re now pointing to Silver’s appellate victory as proof.

 
 

Not so fast. The Second Circuit Court of Appeals didn’t vacate Silver’s conviction on grounds that the evidence was insufficient. Judge José Cabranes, one of the country’s most distinguished appellate judges, explicitly wrote for the court that “the evidence presented by the Government was sufficient to prove” the extortion, honest-services fraud and money-laundering counts against Silver.

The evidence at trial showed that Silver had used his political influence to set up schemes to enrich himself. The most egregious involved steering mesothelioma cases to the Weitz & Luxenberg law firm for which he did little work, in return for some $3 million in referral fees. He also cadged nearly $1 million in a real-estate referral scheme. The evidence was clear and convincing, as the jury concluded.

Judge Cabranes and two colleagues overturned the verdict because the instructions to the jury in the case did not “comport with McDonnell and are therefore in error.” Specifically, wrote the judge, “the instructions did not convey to the jury that an official action must be a decision or action on a matter involving the formal exercise of government power akin to a lawsuit, hearing, or agency determination.”

This may sound like a technicality, but accurate jury instructions are fundamental to a fair trial. And here is where Mr. Bharara’s dereliction comes in. He denied responsibility for the Silver reversal because the trial occurred before McDonnell. But he knew the highly publicized McDonnell appeal was in progress, and that the Supreme Court had already targeted overbroad honest-services indictments in its 2010 Skilling decision.

As Judge Cabranes writes, “The Government expressly urged the jury to convict because an official act ‘is not limited to voting on a bill, making a speech, passing legislation, it is not limited to that,’ but rather, includes ‘any action taken or to be taken under color of official authority.’ The Government thus directly argued that the District Court’s instruction defining an official act was broader than the formal exercise of government power described in McDonnell.” (The italics are Judge Cabranes’s.)

Our guess is that Mr. Bharara was only too happy to overlook a faulty jury instruction if he could get a high-profile conviction. He took a similar risk when he exceeded the limits of insider-trading law before he was slapped down by the Second Circuit in the Newmancase. This is often the habit of prosecutors who want to make a political name for themselves and are celebrated in the press. See James Comey and Rudy Giuliani.

Mr. Bharara’s successor is vowing to retry Silver, but other corruption convictions may also be in jeopardy on appeal after the Second Circuit ruling. The lesson is that prosecutors have to follow the law even when their targets are unsavory politicians. As for reducing corruption, voters can help by refusing to tolerate the kind of political self-dealing that George Washington Plunkitt of Tammany Hall famously called “honest graft.” They can do that at the ballot box.

Appeared in the July 17, 2017, print edition.

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