Silver Case Goes On, But U.S. Attorney Gets a Slap

MANHATTAN (CN) - Former New York Assembly Speaker Sheldon Silver's prosecution for public corruption charges will proceed despite "the media blitz orchestrated by the U.S. Attorney's Office," federal judge said Friday.

"In this case, the U.S. Attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that defendant Sheldon Silver has a non-frivolous argument that he fell over the edge to [Silver]'s prejudice," U.S. District Judge Valerie Caproni wrote.

Since his Jan. 21 arrest, Silver has been battling accusations that he disguised millions in bribes and kickbacks as legitimate income from asbestos litigation and real-estate referrals from a private law practice.

Part of his counteroffensive has involved denouncing how Manhattan U.S. Attorney Preet Bharara has spoken about the case in the press.

Silver's attorneys noted that the New York Daily News and other outlets caught wind of a criminal complaint against their client hours before the arrest in reports that cited "law enforcement sources."

Bharara denied that the leaks came from his office, but Silver's complaints did not end there.

After he unveiled a criminal case at a press conference, Bharara spoke about the public corruption case in the press and other public fora while a grand jury was still deciding whether to indict Silver.

Taking issue with Bharara's bringing up the subject at a New York Law School speech and MSNBC interview, Silver's attorney Steven Molo told a federal judge that "there was no purpose [for Bharara's remarks] but to prejudice the grand jury and the jury that will hear this case."

While Bharara denied any connection to these events, Caproni found that the "government's argument that the timing of the U.S. Attorney's speech at the New York Law School event was merely coincidental to be pure sophistry."

"While the New York Law School speaking engagement was apparently scheduled long before Silver's arrest, it was the government that decided when to arrest Silver," the 16-page opinion stated. "Given the fact that the U.S. Attorney apparently wanted to address the topic of public corruption in his speech, a far more prudent course - and one that would have been far more respectful of the defendant's presumption of innocence and fair trial rights - would have been to delay the arrest until after the U.S. Attorney's speech and for the U.S. Attorney to stay focused on politicians who have actually been convicted."

In a footnote, Caproni scolded the top prosecutor's social media use for tweeting: "Politicians are supposed to be on the ppl's payroll, not on secret retainer to wealthy special interests they do favors for."

"Nevertheless, dismissal of the indictment is not appropriate," the judge concluded. "Even if the court were to accept the defendant's view that the U.S. Attorney's comments were improper, there is no evidence that the U.S. Attorney's comments 'substantially influenced' the grand jury's decision to indict."

She added: "Although the court does not condone the government's brinksmanship relative to the defendant's fair trial rights or the media blitz orchestrated by the U.S. Attorney's Office in the days following Mr. Silver's arrest, the defendant's motion to dismiss the indictment based on allegedly improper and prejudicial extrajudicial statements by the U.S. Attorney is denied."

The U.S. Attorney's office declined to comment. But Molo and his co-counsel Joel Cohen praised the judge's warning to Bharara in an email statement.

"We recognize the high bar to dismissal, but are pleased that the court took exception to the conduct of the United States Attorney and cautioned against future use of the tactics employed against Mr. Silver," they wrote. "We look forward to continuing our attack on the merits of the case and our client's ultimate vindication."

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