After the Second Circuit Court of Appeals handed down its decision last week overturning the conviction of former Assembly Speaker Sheldon Silver, his lawyer said, “We are grateful the court saw it our way.”
Not so fast.
Although the court overturned the guilty verdict — a jury of New Yorkers convicted Silver of seven counts of public corruption charges in just three days of deliberations — it did so on a technicality: jury instructions. Citing a recent Supreme Court case decided after Silver’s conviction, the appeals court found that the District Court’s instructions to the jury were erroneous under that new case.
That case established that for the purposes of federal bribery laws, an “official act” requires the “formal exercise of governmental power” for personal gain. Despite accepting a Rolex watch and fancy vacations to advance the interests of a private company, former Virginia Gov. Bob McDonnell’s conviction was overturned by the Supreme Court because his actions did not meet the “official act” threshold. McDonnell merely introduced a business representative to various contacts in the government, hosted events for him, and encouraged state universities to work with his company, but did not exercise “formal power.”
But Silver did just that. As speaker, he secretly steered taxpayer dollars to a doctor, who in return sent patients to Silver’s law firm, putting $4 million in referral fees into Silver’s pocket.
The difference between what Silver and McDonnell did is clear, which is why the Second Circuit also acknowledged that the prosecutors’ case is sufficient to prove that Silver engaged in a pay-to-play scheme and abused his power as a public official for his benefit. The facts to constitute a crime are all there, even under the new legal standard, and prosecutors said they will retry the case.
That difference matters, especially because President Donald Trump is similarly corrupt.
When Trump jets off in Air Force One to Mar-a-Lago, his “Southern White House,” to conduct official business, or when he leaves Washington for the Trump National Golf Club in Bedminster, New Jersey, or when State Department officials spend $15,000 on diplomatic visits at a Trump-associated hotel, he’s using the power of his office to line his pockets.
Trump’s unabashed profiting off the presidency for his company and his family’s companies is alarming. Remember when Trump adviser Kellyanne Conway stood in the White House press briefing room and directed the public to buy Ivanka Trump products?
Much like Silver, Trump has been exercising and most likely will continue to exercise formal power to enrich himself and his family. Fortunately, as the Second Circuit reaffirmed, that’s still illegal.
The Silver and McDonnell decisions, and Trump’s self-dealing, only reinforce the need for ethics reform nationwide, including New York. As former U.S. Attorney Preet Bharara, said, “New Yorkers should not settle for something weak when there is an appetite and an opportunity for something strong.”
Now is not the time, as Gov. Andrew M. Cuomo suggested, to wait for the case to be “fully litigated” just so we can “find where we wind up.” What’s being “fully litigated” is the federal standard. Nothing precludes New York from defining what constitutes illegal self-dealing and a betrayal of the public trust by an official under state law. In fact, State Sen. Todd Kaminsky, a former federal prosecutor, introduced such a bill in January.
The rulings by the Second Circuit and the Supreme Court might give Trump and his supporters reason to believe that using a public office for personal gain is not corrupt. They shouldn’t. The presidency — or any public office — is not a personal ATM.
Susan Lerner is executive director of Common Cause New York, a government reform group.