Sheldon Silver appeal likely to focus on honest services law

A day after former Assembly Speaker Sheldon Silver’s conviction, legal experts said Tuesday appeals are likely to focus in part on the government’s aggressive use of “honest services fraud” charges in public corruption cases — the same issue ex-Senate leader Joe Bruno used to erase his corruption conviction.

Bruno got a new trial and was eventually acquitted after a 2010 Supreme Court ruling that mere conflicts of interest weren’t enough to convict politicians of depriving the public of “honest services” — prosecutors had to show bribes or kickbacks. Silver was charged with bribe-taking, but his defense is expected to say that was window-dressing for a conflict-of-interest case.

“You can paint stripes on a dog, but that doesn’t make it a zebra,” said former federal prosecutor Marc Mukasey, summarizing the argument he expects to hear from Silver’s team.

And an appeals court or the Supreme Court, said Albany Law School professor Vincent Bonventre, may want to refocus on a law that gives prosecutors broad discretion to bring cases that may chill standard, legal political conduct — like raising money or, in New York, serving while making outside income, as Silver did.

“They may want to clarify what you can do and what you can’t,” Bonventre said.

Silver, 71, was convicted of bribery, extortion and money laundering for allegedly giving research money to an asbestos doctor and helping two developers with legislation in return for them funneling legal work to law firms that paid Silver referral fees worth $4 million.

Legal observers describe it as an “aggressive” use of the federal honest-services law by Manhattan U.S. Attorney Preet Bharara because it was not a classic cash-in-a-bag bribery scheme, and no government witness explicitly linked Silver’s fees with any promised favors in return.

Prosecutors argued there was an implicit understanding based on circumstantial evidence, and the jury convicted. But experts say Silver’s team will argue that if the verdict stands, it will let prosecutors accuse any politician who takes action affecting a donor of an implicit understanding that is criminal, not just a conflict.

“You cast the net so broadly that prosecutors have discretion to prosecute whoever they like,” said Albert Alschuler, an emeritus professor at the University of Chicago law school.

“I have no doubt that there will be a vigorous appellate battle,” Mukasey said, noting that the 2d U.S. Circuit Court of Appeals in Manhattan recently knocked down Bharara’s interpretation of insider trading laws. “That bench has shown it’s not afraid to tell the government it pushed too far on a misguided theory.”

Other experienced lawyers aren’t sure the argument will get far, noting that the charges tracked the requirements the Supreme Court has set out so far for corruption cases, and showing an implicit understanding with circumstantial evidence is not an exotic theory of bribery.

“The judge’s instructions were right in the heartland of bribery,” said Edward Loya of Venable LLP, a former Justice Department public integrity prosecutor. “As long as there was an understanding, that’s all that was required.”

Jim Cohen, a Fordham criminal-law professor, noted that Bharara’s office probably anticipated issues about the honest-services charges right from the start, and fully vetted their case to stand up on appeal.

“It would surprise me,” he said, “if the prosecutors weren’t very careful to make that very difficult to develop.”