What does SCOTUS’ McDonnell decision mean for Silver and Skelos?

One of my first assignments as a rookie reporter for City & State was a doozy – write a cover story on the the unfettered prosecutorial pursuit of former Senate Majority Leader Joe Bruno .

At the time, the public perception of Bruno was similar to that of the recently convicted ex-Assembly Speaker Sheldon Silver – an elected official who used the power of his office to line his pockets at the expense of the taxpayers. In fact, that’s exactly what Bruno was charged with in December 2009 – depriving his constituents of “honest services” by using his might as majority leader to reap hundreds of thousands of dollars in consulting fees from an Albany businessman in exchange for work that, prosecutors contended, he had not actually performed.

Bruno’s conviction on two of those eight charges was later vacated in 2011 as a result of a Supreme Court decision ruling that the “honest services” law was too broad and should be limited solely to cases involving bribery or kickbacks (he was later charged again with accepting bribes and kickbacks with nary a piece of new evidence, leading to cries of double jeopardy and serving as the basis for my cover story).

Roughly five years later, the Supreme Court decided on Monday to narrow the application of the honest services law even further, vacating the graft conviction of former Virginia Gov. Bob McDonnell on the grounds that only certain official acts can serve as the basis for a corruption prosecution.

The McDonnell case was cited by some legal experts as a potential harbinger for vacating the convictions of Silver and Bruno’s successor as Majority Leader, Dean Skelos – both of which have led to the outcry over the myriad ethical problems in the state Legislature.

For clarity on the larger implications of the McDonnell case, I phoned Vincent Bonventre, a law professor at Albany Law School, who provided invaluable perspective for my Bruno story and who is one of the most respected voices on law and politics.

The following is an edited transcript of our conversation.

Nick Powell: What is the legal argument that lawyers for Dean Skelos or Sheldon Silver can make that the McDonnell decision should result in vacating their respective corruption convictions?

Vincent Bonventre: Well I think what they’re going to do is say that, when you add the McDonnell decision to the original decision in Skilling, the Skilling decision was the one that narrowed this law so that it only covered bribes and blackmails; this one now says, even with regard to bribes and blackmails, they must relate to an official action. And the chief justice, speaking for a unanimous court – which you rarely see with regard to this court – said that “official act” under this law must be defined very narrowly, which is that the politician actually made a decision, cast some vote, actually did something in official government capacity with a connection to bribery or blackmail. So the typical kind of things politicians do, help out supporters by making phone calls and say, ‘You want to give this guy a hearing?’ or maybe ‘You want to give this a second thought?’ The court said, “No, this is what politicians do and that’s not what this law prohibits and punishes.” There must be some proof beyond a reasonable doubt that this politician actually voted a particular way or made a very particular governmental decision because of this bribe or blackmail.

NP: That last point you made is really interesting because, I understand it, that exact point about influencing legislation was the crux of the Skelos case and his conviction. So will that argument be seen in the same light when the Skelos case is re-examined?

VB: I think with regard to Skelos, there are conversations, many of which sounded like threats, the unmistakable implication was that official action would be taken that would be unfavorable, or official action that would have been favorable would not be taken. So there seems to be, and again I don’t think there was anything expressed (in the Skelos case) like, “You better do this or I will definitely vote against you.” Nothing like that, but there’s nothing in this opinion that requires something to be expressed if there’s an unmistakable implication. So for instance, the mob hiring a hitman, “Take him out,” you don’t have to say, “Kill the guy.” The unmistakable implication is that there will be official action taken, I think that will be enough. Seems to me there was proof of that in the Skelos case.

NP: Do you think the same holds true for the Silver case, which, many believe, was not as cut and dry?

VB: To tell you the truth, I just did not think that the government proved that Silver was guilty under that statute. What I did think was that the government proved that in the minds of most people this was a corrupt politician who made lots of money because he was a powerful, influential politician. Unfortunately, that is not what the federal statute prohibits and punishes. Unfortunately, New York, like Virginia in the McDonnell case, does not have laws prohibiting politicians from making lots and lots of money outside of office. In fact, the government in the McDonnell case said, “You ought to uphold this conviction because Virginia doesn’t have any law prohibiting McDonnell from doing what he was doing.” Well, hello? This is criminal law, for crying out loud. The government does have to make it clear what it is prohibiting and what it is going to punish. And if the government does not make that clear, then it’s not enough that the government thinks that certain conduct is unethical or immoral or outrageous. If you want to punish something, put it down in writing and make it clear, and they didn’t do that with the statute.

NP: Many people are drawing a direct line from the McDonnell decision to the Joe Bruno conviction under honest services, which was vacated when the application of that law was narrowed. Are there similarities between the two cases?

VB: I thought that the Bruno prosecution was a complete and utter travesty. Trying him again was travesty squared, to the third power. Wasn’t anything that the government had strong proof of that Joe Bruno had done in his very official action, official government decisions or official government vote, on behalf of supporters or anyone else. Again, he made money and people did favors for him because he was an important politician. But there wasn’t any link to bribery or blackmail to some official action. That was really outrageous what they did to that guy.

If New York wants to have laws prohibiting politicians from making lots of money on the side, New York can certainly have such laws, but we don’t have them. You can’t say, “Federal government, help us out, we don’t have any goddamn laws, so prosecute the politicians under this particular law.” It’s pretty clear that none of the justices particularly like (the honest services law), and so they keep narrowing it and narrowing it.