Should Sheldon Silver be celebrating?

Illustration by Guillaume Federighi

The corruption conviction against former Assembly Speaker Sheldon Silver was overturned on Thursday, jolting the political and legal landscape, and raising questions about the whether other officials previously convicted of corruption might also have their legal fortunes reversed.

“We are grateful the court saw it our way and reversed the conviction on all counts,” Steven Molo and Joel Cohen, lawyers for Silver, said in a statement.

The U.S. Attorney’s Office in the Southern District of New York, which prosecuted the case against Silver, said they would retry the case, but a spokesperson said that it was “too early to say” when the office will begin the process.

Experts previously believed the odds were stacked against Silver’s appeal, and the decision could indicate future difficulty in prosecutors obtaining convictions for public corruption. The ruling is in line with a trend towards a narrowing definition of corruption, legal experts said.

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The federal appeals court’s decision to overturn the case hinged on the 2016 precedent-setting U.S. Supreme Court case, McDonnell v. United States, where the court narrowed the definition of “honest services” fraud – a statute under which Silver was also convicted, in addition to Hobbs Act extortion and money laundering.

But several legal experts told City & State they believe that despite the setback for the U.S. Attorney’s office, Silver would not escape a second conviction.

Former U.S. Attorney Preet Bharara, who first brought the case against Silver, tweeted earlier Thursday, “The evidence was strong. The Supreme Court changed the law. I expect Sheldon Silver to be retried and re-convicted.”

Zephyr Teachout, a law professor and corruption expert who ran in the Democratic primary for governor in 2014, echoed Bharara’s opinion. She said that the ruling rested on a shift in how the “honest services” statute is interpreted between the time Silver was convicted in 2015 and when the Supreme Court decided McDonnell in 2016.

“The Second Circuit is saying we can’t be sure that jury instructions wouldn’t have made a difference, so we’ve got to throw this out, but it certainly leaves the door open for retrial and reconviction,” Teachout said.

The appeals court found statements by the prosecution and jury instruction by the trial judge to be overly broad, explained Vincent Bonventre, a professor at Albany Law School and director of the Center for Judicial Process. Silver may have taken actions to benefit others in exchange for payments, but these did not fall under the specific definition of “official acts” that is necessary to convict on corruption charges.

Bonventre was referring to the change that occurred after Silver had been convicted by a jury in the District Court of the Southern District of New York in 2015, when the Supreme Court narrowed the definition of an “official act,” the basis for corruption charges, in the McDonnell case. In that decision, Chief Justice John Roberts wrote on behalf of the Court that an official act “must involve a formal exercise of governmental power, and must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”

Using the definition outlined in the McDonnell case, Judge Jose Cabranes wrote in the decision Thursday morning by the U.S. Court of Appeals for the Second District that the district court’s instructions to the jury about what constitutes an official act was in error. He added that “it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed.”

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Bonventre said that the appeals court decision was tantamount to saying, “We don’t know why the jury convicted Sheldon Silver.”

Jury members may have convicted Silver on the basis of what prosecutors and the judge told them, “which is that anything that Sheldon Silver might have done as speaker of the assembly was one of those official actions,” Bonventre said. He added that these directions conflict with the Supreme Court’s decision in McDonnell.

While the high court’s narrower definition for an official act requires more precise evidence, connecting payments and actions, Teachout said, prosecutors would have strong enough evidence in the Silver case to re-convict under this higher legal standard.

Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School, also thinks that Silver will likely be convicted when the retrial goes forward and a jury has been “properly instructed” of the definition for an official act.

Even after the acts that the Second Circuit court ruled as not official are removed from the charges, Rodgers said there is still a “ton of evidence” that Silver was engaged in corrupt activity.

Rodgers also believes that the ruling to overturn Silver’s conviction should not be seen as a sign that the Second Circuit court will rule similarly in the case of former state Senate Minority Leader Dean Skelos, who is appealing his conviction of corruption charges using arguments based on the McDonnell decision.

“There were a few things in Silver that were different from Skelos that were important to the Second Circuit in deciding Silver,” she explained. Rodgers said that the Silver case included charges that “the government said were official acts that clearly should not have been under McDonnell.”

“Skelos doesn’t have those. I think all of the conduct charged against Skelos is really official,” she said. Rodgers also noted that there were some aspects unique to the Silver case that had factored into the judges’ decision-making that would not apply to the Skelos case, such as issues regarding the statute of limitation for considering some charges.

In future corruption cases, Teachout notes, prosecutors may be less likely to reach for the “honest services” statute as readily because it’s been weakened and will likely turn to other laws to pursue corrupt officials.

In the wake of the ruling in the Silver case, some are looking at tools other than legal prosecution to end corruption in the state. Dick Dadey, the executive director of the Citizens Union, a nonpartisan organization which encourages good governance, said that New Yorkers need to address the recent spate of scandals through a constitutional convention.

“If you want a prime example of what corruption is in New York state, this is it,” said Dadey. “Legislation is not going to pass that’s going to prevent the kind of corruption that Sheldon Silver was involved in, so New Yorkers need to step up and call for a constitutional convention when they vote in November.”

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