Sheldon Silver Is A Criminal, So How About Joe Biden?

It was back in July 2017 that we last visited the subject of the federal criminal prosecution for corruption against former New York State Assembly Speaker Sheldon Silver. The occasion was the reversal at that time by the Second Circuit Court of Appeals of Silver’s conviction on all seven of the counts on which he had been found guilty.

Did that mean that Shelly was off the hook? Not so fast. The prosecutors elected to re-try Silver on all seven counts, subject to more restrictive jury instructions. In May 2018 Silver was again convicted on all seven counts. His appeal of the new conviction reached decision in the Second Circuit last Tuesday, January 21. This time, the court again vacated the conviction as to three of the counts, but affirmed on the other four. Here is a link to the Second Circuit’s January 21 Opinion.

This Opinion represents another step in the ongoing struggle of the courts to define criminal public corruption in a way that makes it possible to distinguish the criminal from the non-criminal politicians. That task turns out to be harder than you might expect. The Second Circuit’s very thorough 89-page opinion seems to be taking a stab at being the definitive word on the subject; but of course, Silver gets another run at the Supreme Court if he wants to take it. (And why wouldn’t he?). Meanwhile, this Opinion gives us the occasion to reflect once again, not only on the inherent corruption of the entire political sphere, but also on the question of where the conduct of Joe and Hunter Biden might come out under the most recently announced legal test.

The fundamental problem here is that all political officeholders take contributions and gifts from constituents — campaign contributions being the archetype — and all officeholders also regularly take official actions that benefit or harm some groups of constituents over others. Other than the occasional self-funded candidate, there is no political officeholder who has not taken some action or other that has benefited at least one contributor in some way. In essentially every case, the material is there for a prosecutor to swoop in and say, here is the money you took from Mr. X, and here is the official action that you did as the favor for the same guy. The prosecutor just asks the jury to make the inference that the two were linked. Follow this logic, and all the officeholders end up in the hoosegow. That may not sound like such a bad idea as to the current crop of officeholders, but it would also leave us with no way to replace them.

The Supreme Court has dealt with these issues in recent years in two major cases: the Skilling case of 2010, and the McDonnell case of 2016. For some details on these cases, see my linked post here. Skilling (of Enron fame) was charged under 28 U.S.C. Section 1346 with “depriv[ing his victims] of the intangible right of honest services” — same thing that Silver was charged with in most of his counts. Skilling challenged the statute as void for vagueness. Rather than throwing the statute out entirely (which is what I would have done), the Supremes rescued it by deciding that a prosecution for “honest service fraud” could be valid if it involved a “bribery or kickback scheme.” Bribery and kickback schemes in turn involve classic quid pro quos (recognize that term?) — the exchange of the specific quid for the specific quo being the thing that distinguishes bribes and kickbacks from ordinary constituent service. McDonnell then expanded on the requirement of the specificity of exchange.

Silver’s contention was that he had nothing close to a specific agreement to trade X bribe for Y official act. In both fact patterns involved in the Silver convictions, the payments to Silver were in the form of referrals of legal cases to law firms with which Silver was affiliated; when the cases settled, the law firms then paid so-called “referral fees” to Silver, which aggregated several million dollars over the period of the charges. As to the reciprocal official acts, Silver’s contention was that at most he had been engaging in normal constituent service, doing acts that may be helpful to his benefactors, but that had not been discussed or identified in advance, “as the opportunities arose.” Could that meet the “quid pro quo” test of a “bribery or kickback scheme”?

The Second Circuit answers by articulating the following test (Slip Opinion at 32-33), said to derive from McDonnell:

McDonnell thus stands for the proposition that bribery requires that an official accept a payment, knowing that he is expected to use his office to influence a “focused,” “concrete,” and “specific” question or matter that “may be understood to refer to a formal exercise of government power.”

The quo does not need to be a specific act, but only needs to relate to a “focused, concrete and specific” subject matter. In the Silver case, the “focused, concrete and specific” subject where official acts were sought involved the renewal of New York real estate tax and regulatory statutes. Apparently, Silver as Speaker of the Assembly was able to slip into a renewal of certain real estate tax exemptions a couple of small provisions that specifically benefited the real estate developers who referred the cases that generated fees for Silver. That was enough for the Second Circuit to affirm as to those counts.

So let’s now apply the Second Circuit’s words to the case of Joe/Hunter Biden and Ukraine. Recall first that for purposes of political corruption prosecutions, a payment to the son can be treated for all purposes as a payment to the officeholder-father. (See the case of Dean Skelos, former New York Senate Majority Leader, currently serving a four year federal prison term for payments all of which went to his son Adam.). I don’t think there’s any doubt that the subject of keeping Ukrainian prosecutors at bay from the Burisma company is a sufficiently “focused, concrete and specific” subject matter to meet the Silver test. That leaves as the only remaining question whether Joe and Hunter “accepted the payment knowing that [Joe] was expected to use his office to influence” that subject matter. Really, how could they not have? I don’t understand how they even argue the contrary. As far as I can see, when questioned about this subject on the campaign trail, Joe’s response has been to accuse his questioners of being liars and to challenge them to push-up contests.

Of course, the Supreme Court could still get another crack at this, and modify the test. I can’t see how any likely modification would make the position of the Bidens any better.