Knock him down and Sheldon Silver has consistently gotten back up again. In the last five years, New York has seen the former Assembly Speaker convicted of corruption, spared on a technicality, and then convicted again. And on Tuesday, a federal appeals court partially overturned the second conviction.
But the once-powerful former lawmaker is unlikely to avoid prison this time around.
Silver, originally convicted on multiple counts of corruption in 2015, won a minor victory on Tuesday when the United States Court of Appeals for the Second Circuit overturned a subsequent 2018 conviction on the grounds that it didn’t identify specifically enough a quid pro quo between Silver and a Columbia University cancer researcher from whom Silver was found guilty of taking bribes. Still, the three-judge panel affirmed the bulk of the conviction, likely guaranteeing that Silver will see prison time.
Tuesday’s ruling – like the 2017 ruling in which Silver’s original conviction charges were overturned – reflects a narrower definition of what constitutes corruption by a public official that’s been the standard since the 2016 Supreme Court ruling that overturned former Virginia Gov. Bob McDonnell own corruption conviction.
In Silver’s case, not all of the corruption charges levelled against him stood up to the new test. To make it easier to follow this winding, years-long saga, City & State has made this handy FAQ:
What’s new in Tuesday’s ruling?
Silver was first convicted on federal corruption charges in 2015 on seven counts relating to bribery schemes with two real estate development firms and Dr. Robert Taub, a cancer researcher at Columbia University. In total, he was accused of taking almost $4 million in illegal payments from those groups, while taking “official actions” in office to benefit them, including arranging meetings and supporting legislation they favored. The former Assembly speaker was sentenced to 12 years in prison.
But that ruling was thrown out in 2017, on the basis that the judge’s instructions to the jury were too broad in explaining what constitutes an “official action,” which, according to a 2016 Supreme Court ruling, must be a formal action, such as holding a hearing, and not just courtesies like arranging meetings.
In his second trial in 2018, Silver was again convicted on all seven counts, and sentenced to seven years in prison. On Tuesday, the Second Circuit court overturned three of those counts, ruling that prosecutors hadn’t identified specific or concrete enough actions that Silver took to benefit Taub in exchange for bribes. “Without a requirement that an official must promise to influence a particular question or matter,” the ruling read, “any official who accepts a thing of value and then later acts to the benefit of the donor, in any manner, could be vulnerable to criminal prosecution.”
The court did acknowledge that there was evidence Silver had once arranged grants for Taub in exchange for Taub referring patients to a law firm that Silver received fees from, but that arrangement occurred before 2007, outside the statute of limitations.
Since when does corruption have such a narrow definition?
When Silver’s original conviction was thrown out in 2017, it all stemmed from the corruption case of former Virginia Gov. Bob McDonnell. McDonnell was convicted of using his office to help someone he took more than $175,000 in gifts from, but he appealed. The case reached the Supreme Court, which, in an opinion written by Chief Justice John Roberts, ruled in McDonnell’s favor, making it more difficult to prosecute public officials on corruption. If a government official receives a bribe from a constituent, for example, the “quo” in that quid pro quo has to be something concrete, like granting that donor a government contract.
The Supreme Court’s restriction of what kinds of acts can be used to convict a public official trickled down to the Silver case. And good government advocates aren’t happy about that new standard. “New Yorkers, including the Silver jury, recognize corruption when they see it; it’s only the U.S. Supreme Court that is confused,” Susan Lerner, executive director of the watchdog group Common Cause New York, wrote in an emailed statement. Lerner added that the Second Circuit panel “had no alternative but to follow the bad precedent set by McDonnell and let Shelly Silver off the hook for one of his clearly corrupt schemes.”
The panel on Tuesday did, however, rule that Silver’s arrangements with the two real estate development firms – in which the developers directed business to a law firm that gave kickbacks to Silver – constituted corruption. In those arrangements, Silver performed favors including supporting tax breaks and landlord-friendly regulations, in exchange for $800,000 in legal fees. “He will be punished for at least one of his crimes that we are aware of,” Lerner wrote.
What’s next for Silver?
With four of the seven original counts upheld, Silver is now facing resentencing by the trial judge, though it’s not clear how much she will adjust the seven-year sentence, if at all. Silver’s lawyer, Meir Feder, declined to comment on Wednesday.In the meantime, critics have been consistent in pointing out that five years after the original conviction, Silver has yet to serve a day of prison time.