MANHATTAN (CN) — Vacating the corruption convictions of former New York Assembly Speaker Sheldon Silver on Thursday, the Second Circuit cited recent Supreme Court precedent loosening anti-bribery laws.
Before receiving a 12-year sentence two years ago, Silver had been one of the most powerful politicians in Albany, occupying the top Democratic post in the New York Legislature.
That was before he fell on the radar of crusading former U.S. Attorney Preet Bharara, whose indictment of Silver had been a crescendo in a series of prosecutions that had become known as “Albany on Trial.”
A federal jury convicted Silver two years ago of accepting $5 million in bribes, by virtue of his ceremonial job at a law firm specializing in recovering damages for asbestos-related illnesses and his dealings with a real estate developer reliant on state funds for its business.
Silver’s 12-year sentence was the second-highest ever received by a New York politician but he stayed out of prison pending this morning’s reversal on the strength of a Supreme Court precedent involving another disgraced politician: former Virginia Gov. Robert McDonnell.
Like Silver, McDonnell never denied taking money from donors — in the governor’s case, more than $175,000 in loans and gifts, including a Rolex, a Bergdoff Goodman shopping spree for his wife, and five-figure wedding gifts for his daughters.
Both denied, however, being influenced by the money, a distinction the Supreme Court found significant when its ruling for McDonnell effectively legalized the buying of political access.
The Second Circuit determined Thursday that any jury weighing the charges against Silver must be given guided on such instructions.
“We recognize that many would view the facts adduced at Silver’s trial with distaste,” U.S. Circuit Judge Jose Cabranes wrote for a three-person panel.
“The question presented to us, however, is not how a jury would likely view the evidence presented by the government,” he added. “Rather, it is whether it is clear, beyond a reasonable doubt, 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.”
That language of the 48-page ruling, which includes six pages of appendices, echoes what the Supreme Court’s Chief Justice John Roberts said of McDonnell.
“There is no doubt that this case is distasteful; it may be worse than that,” Roberts wrote in June 2016. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns.”
Silver’s attorneys, Steven Molo and Joel Cohen at the firm MoloLamken, applauded the ruling. “We are grateful the court saw it our way and reversed the conviction on all counts," Molo and Cohen said in an email.
Acting U.S. Attorney Joon Kim, who succeeded Bharara after serving as his deputy, vowed to press forward with the case.
“While we are disappointed by the Second Circuit’s decision, we respect it, and look forward to retrying the case," Kim said in a statement.
"Although finding that the Supreme Court’s McDonnell decision issued after Silver’s conviction required a different legal instruction to the jury, the Second Circuit also held that the evidence presented at the trial was sufficient to prove all the crimes charged against Silver, even under the new legal standard," Kim added. "Although this decision puts on hold the justice that New Yorkers got upon Silver’s conviction, we look forward to presenting to another jury the evidence of decades-long corruption by one of the most powerful politicians in New York state history. Although it will be delayed, we do not expect justice to be denied.”
The reversal of McDonnell’s conviction last year had caused alarm for the Brennan Center for Justice at the New York University School of Law.
Though the progressive think tank had warned at the time against opening the floodgates to politicians selling access, it took a more cautious tone on today’s ruling.
“McDonnell is a narrow decision that leaves plenty of room for the government to forbid officials from using public office for private benefit,” Daniel Weiner, senior counsel for the group’s Democracy Program, said in a statement.
Weiner emphasized that the order for a new trial does not find Silver’s actions legal, but that it is up to the New York Legislature now to fill the void the Supreme Court created.
“Today’s ruling does further underscore that federal bribery law is not enough to protect the integrity of our democracy,” he said. “We need other common-sense protections, including reasonable campaign contributions limits, which New York state currently lacks.”
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.