Corruption Case Against Silver is Strong, Legal Experts Say
While announcing the corruption charges against Assembly Speaker Sheldon Silver Thursday afternoon, U.S. Attorney Preet Bharara was careful to point out that the legislative leader is “presumed innocent, unless and until proven guilty.”
Legal experts were quick to agree, of course—but they also said that the criminal case against Silver appears to be a strong one, given the solid legal framework underlying the charges, the detailed documentation of his alleged corruption schemes and the substantial number of cooperating witnesses.
In a bombshell announcement, federal prosecutors accused Silver, one of the state’s most powerful Democrats, of using his elected office to amass millions of dollars through bribes and kickbacks disguised as legitimate payments in an outside job as a private attorney.
According to Bharara, the U.S. attorney for the Southern District of New York, some $700,000 came from real estate developers with business before the state, funneled to Silver through a real estate law firm run by his former counsel.
In another scheme, he allegedly directed research funds and additional benefits to a doctor who referred asbestos patients to a personal injury law firm that paid Silver nearly $4 million for what prosecutors described as a no-show job.
Silver’s attorneys have dismissed the allegations as “meritless” and predicted a “full exoneration” of their client.
One potential weakness is the mail fraud law, which underlies a portion of the case and is “notoriously fungible” and “troubles some appellate judges,” said Eugene O’Donnell, a lecturer at John Jay College of Criminal Justice. But the underlying legal framework appeared to be solid otherwise, O’Donnell and other legal experts said.
“The allegations here go beyond technicalities: they are of an old-fashioned, audacious, middle of broad daylight, years in the making scheme to line Silver's pockets by corrupting his office and using it for private gain,” said O’Donnell, a former prosecutor.
In addition, several experts said the 35-page complaint makes clear that the charges were the product of an intense effort by the U.S. Attorney's Office.
“A case such as this is vetted at the highest levels of the Justice Department,” O’Donnell said. “That does not assure that it cannot collapse, but such an outcome is unlikely.”
Another factor is which witnesses will testify if the case goes to court. Several witnesses mentioned in the complaint were directly involved and have cooperated with prosecutors, which could bolster the case. The doctor and an attorney at the real estate law firm that paid Silver, both unnamed, were granted immunity as a result of their cooperation with prosecutors. Investigators also fleshed out the details of the alleged schemes by interviewing developers and lobbyists who were directly involved, including at least one who also has a non-prosecution agreement.
Jennifer Rodgers, who served formerly in the Office of the U.S. Attorney for the Southern District, said that having cooperating witnesses with firsthand knowledge of any criminal conduct is always an advantage for prosecutors.
“The complaint does reference a cooperating witness who received a non-prosection agreement—the doctor who allegedly was benefitted by the speaker’s diverting funds to his research center he was involved with and a nonprofit in exchange for the doctor sending patients to the law firm that paid Sheldon Silver legal fees,” said Rodgers, now executive director of the Center for the Advancement of Public Integrity at Columbia Law School. “If that doctor is a cooperating witness, which the U.S. attorney says that he or she is … that’s obviously a very strong piece of evidence, because that person has firsthand knowledge of the relationship between him or her and Silver and what deal was struck and what went on there.”
Regardless of the final outcome, the perceived strength of the charges against Silver are likely to play a role in his continued leadership. Several influential colleagues in the Assembly have said that they still support Silver as speaker, although some Democratic lawmakers—as well as The New York Times—have already called for his resignation.
By contrast, Senate Republicans have rallied around Deputy Majority Leader Tom Libous, who is under federal indictment but may have benefitted from questions about the strength of the case against him.
“Obviously it’s just a complaint, you haven’t heard his side and he’s presumed innocent,” Gerald Lefcourt, a criminal defense attorney, said of Silver. “On the other hand, if all this is true, it’s a pretty devastating series of accusations. A lot of these are 20-year counts. Not that he would receive 20 years for this, but the potential penalties are very significant. And he’s in such a position of power.”
Lefcourt represented Mel Miller, one of Silver’s predecessors as Assembly speaker who also ran into legal trouble while in office. But Lefcourt said that the case against Miller was different in that he did not face allegations of abusing his political office, as Silver is accused of doing. Miller's conviction was eventually overturned.
“Miller was charged with something—he actually co-oped a building. His firm, they actually did real legal work that had nothing to do with his legislative role and he was never accused of using his office for an improper purpose,” Lefcourt said. “They claimed that in co-oping the building he breached fiduciary duties. The federal Court of Appeals threw the indictment out, so of course he stayed on. It had nothing to do with his public office—and after all, he didn’t commit a crime.”
Another point of comparison is the case of former Senate Majority Leader Joseph Bruno. He was initially charged with honest services fraud, not an outright bribery charge like the one that has been lodged against Silver. When the honest services argument was struck down by the U.S. Supreme Court, Bruno had a re-trial—and was acquitted.
“This is a bribery theory,” Lefcourt said of the allegations against Silver. “This is not just you’re not honestly being a legislator. This is quid pro quo, which is you give me this, I’ll give you that.”
Additional reporting contributed by Wilder Fleming.