
Justice denied: NYC court overturns conviction of politician found guilty of taking $4M in kickbacks
By Tyrone Heppard
Published on Truth Against the Machine July 26, 2017
On June 13, a federal court decided to overturn the guilty verdict levied against the former Democratic state assemblyman Sheldon Silver, the man who once served as speaker of the New York State Assembly for over 20 years, in a move that will potentially allow one of the state’s greediest politicians to get off on a technicality.
Back in 2015, Silver was sentenced to 12 years in prison after being convicted of receiving around $4 million in kickbacks while using his position to enrich himself and benefit friends by taking “official actions,” a term worth noting as it will become very important in a minute.
Specifically, Silver was found guilty of receiving portions of legal fees from his friends at law firms that were working with employees from businesses Silver hooked up with government funding.
For example, Benjamin Weiser and Susanne Craig at the New York Times report Silver pulled strings to get a $500,000 grant from the state Department of Health to a cancer researcher named Robert N. Taub, who would later direct patients looking for legal help to a law firm called Weitz & Luxenberg. Those attorneys then gave Silver a portion of the legal fees.
Another time, Silver received a 25 percent cut of legal fees from a different law firm, Goldberg & Iryani, after he directed a couple of real estate developers their way. The work those lawyers did for the developers ended up reducing their property taxes.
So why might Silver get away with this?
You may remember Bob McDonnell, the former Republican governor of Virginia who was convicted of corruption back in 2014. He was found guilty of taking $175,000 in money and gifts in exchange for using his office to take “official actions” that benefited Jonnie R. Williams, CEO of a dietary supplement company in the state. McDonnell appealed to the Supreme Court where the conviction was overturned in a unanimous decision.
As outlined in Chief Justice John Roberts’ decision, while what McDonnell did was “distasteful,” the court was more concerned with the “boundless interpretation” of corruption under the law.
As such, the court used McDonnell’s case to argue an official has to, “make a decision or take an action on that question or matter, or agree to do so,” and “setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of an ‘official act.’”
So in other words, unless a politician formally uses the powers of their office to directly do a very specific thing, it’s not an official act. Here in New York, the three justices on the federal Second Circuit Court of Appeals in Manhattan used the Supreme Court decision to overturn Silver’s conviction.
The specifics are outlined in the lower court’s decision, written out by Circuit Judge José A. Cabranes, who says in Silver’s case, instructions given to the jury were flawed as the judge advised them to used a more general definition of what constitutes an official act.
Silver’s attorneys argued jurors made their decision under the “erroneous” assumption that any action taken by politician is an official act while the McDonnell case shows the opposite. As such, there is a question as to whether jurors would have still found Silver guilty had they used the more strict interpretation. The Circuit Court agreed.
“We recognize that many would view the facts adduced at Silver’s trial with distaste,” writes Cabranes. “The question presented to us, however, is not how a jury would likely view the evidence presented by the Government. Rather … that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court in McDonnell, and the particular circumstances of this case, we simply cannot reach that conclusion.”
Both the Silver and McDonnell decisions are worth the read, because the lengths defense attorneys and seemingly, the courts, went through to convince themselves that corruption is more complicated than it sounds, is truly astonishing.
Virginians are no doubt shocked by what happened to former Gov. McDonnell, but in New York, we’re used to that kind of thing. Here, Silver’s conviction being overturned is just par for the course as it relates to the corruption and scandal that has tainted New York state politics for years.
Crossing race, gender, and party lines, there’s a reason New York has the dubious distinction of being the most corrupt state in America; it seems New York’s politicians seem to be unified in screwing over and disappointing the residents paying their salaries time and time again.
To get the gist of just how bad the problem is, browse through this cast of cartoon characters compiled by the New York Times last year. Since 2006, 14 assemblymen, 13 senators, two governors and even a comptroller (whose job it is to make sure taxpayer money is used properly) have had to step down due to varying degrees of douchebaggery ranging from one guy ganking thousands of dollars from a non-profit that helps sick people to another guy — and I couldn’t make this up — soliciting bribes to pay for a whole ‘nother corruption case.
What most New Yorkers need is someone, ANYONE, with the courage to hold people accountable and stop this madness. At one point, we thought that guy was going to be Gov. Andrew Cuomo.
We were sorely mistaken.
In a photo from 2013, former Assembly Speaker Sheldon Silver shakes hands with Gov. Andrew Cuomo.
As Nathan Tempey with the Gothamist reports, New Yorkers initially thought Cuomo was up to the task in 2013 when he created the Moreland Commission, a panel of attorneys from around the state tasked with looking into any and all instances of corruption. But then, Cuomo shut it down in 2015 seemingly after the panel started looking into some of his donor buddies.
“A commission appointed by and staffed by the executive cannot investigate the executive. It is a pure conflict of interest and would not pass the laugh test,” Cuomo said in 2014, which is a LOT different than what he said when he initially started the Moreland Commission.
“Anything they want to look at, they can look at — me, the lieutenant governor, the attorney general, the comptroller, any senator, any assemblyman,” Cuomo said.
It’s too bad the Moreland Commission was shut down, because it is widely thought to be partly responsible for bringing down Silver, so it’s not like its members weren’t doing their jobs. Wonder what the problem was?
In September, two of Cuomo’s closest aides, along with a state official and over a half a dozen other people, were slapped with federal corruption charges including 37 counts of bribery, extortion, fraud and other related charges.
It’s a long story, and the link above to the Joseph Spector and Jon Campbell piece in Rochester’s Democrat and Chronicle is well worth the read, but of the 10 people charged, two of them were very close to our dear governor..
They were Joseph Percoco, Cuomo’s executive deputy secretary, and Todd R. Howe, a lobbyist with close ties to the governor. Cuomo was not charged with anything, but the pair are accused of using their positions to solicit bribes in return for helping companies get millions of dollars in government contracts.
The New York Post reports Percoco even had the audacity to refer to bribes in emails as “ziti.” Yup — just like in the Sopranos. Howe pleaded guilty and is cooperating with officials. Percoco pleaded not guilty and the jury selection process for his trial begins in January.
No matter what happens to Percoco and the others, the Silver case is the epitome of exactly why a lot of New Yorkers have no faith in their government or expect justice to be served.
Upon news of Silver’s conviction being overturned, the acting United States attorney for the Southern District of New York, Joon H. Kim, said he is looking forward to retrying the case, but Silver’s attorneys are reportedly looking to get his case in front of the Supreme Court where they hope to get it dismissed without going through all the sordid details about how he abused his power all over again.
The influence of big money in politics is certainly a problem on the national level, but unfortunately for us here in New York, our “representatives” have made backdoor deals and shady business a fixture in state government from the bottom to the top.
The hope is that Silver ultimately pays for his crimes. Some people might be shocked if that doesn’t happen, but a lot of people in New York won’t be the least bit surprised.
