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McDonnell, Silver and the Supreme Court’s New Corruption Standards

In an event that the New York Times headline writers have (perhaps hyperbolically) referred to as the possible start of a “parade of horribles,”[1] the corruption conviction of the former speaker of the New York State Assembly Sheldon Silver was overturned on July 13 by the Second Circuit Court of Appeals.[2] The decision rested on a one-year-old United States Supreme Court decision overturning a similar conviction of former governor of Virginia Bob McDonnell. Both decisions reversed convictions based on incorrect jury instructions.[3] These decisions have potentially broad ramifications as they will make it much more difficult to convict politicians under federal corruption laws.

The McDonnell decision stemmed from the 2015 conviction of Bob and Maureen McDonnell under 18 USC § 201 for taking gifts in exchange for performing “official acts” of government. McDonnell was convicted of accepting $175,000 in loans, gifts and other benefits from Virginia businessman Jonnie Williams, CEO of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement. In exchange for the payments, McDonnell arranged meetings, hosted events and mediated contacts with state agencies, all to secure state funding for research studies that would help Star Scientific.

At McDonnell’s trial, the judge instructed the jury that the term “official act” encompasses “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.” The judge refused the defense’s requests to instruct the jury that merely arranging a meeting and hosting a reception are not official acts.

A unanimous Supreme Court ruled that McDonnel’s conviction must be reversed because the judge’s instructions were improper. An “official act,” the Court ruled, must involve a “decision or action” and must involve a “formal exercise of governmental power.” Merely setting up a meeting or hosting an event does not qualify as an official act.[4]

While there were charges that McDonnell did engage in what were clearly official actions in exchange for the payments (including funding research that would help Star Scientific, allocating government money and causing Virginia’s health plan to cover Antablock), because of the erroneous jury instructions, it was impossible to tell whether the jury had convicted McDonnell based on these “official acts” or based merely on taking meetings and hosting events. As such, McDonnell was entitled to a new trial with appropriate jury instructions.

Like McDonnell, Silver was convicted on federal corruption charges. The charges against Silver alleged a variety of schemes, including that he used his official position to help secure state research funding for a Dr. Robert Taub in exchange for Taub’s referring patients to Silver’s law practice and that Silver received kickbacks from real estate developers in exchange for voting for them in government matters of tax abatement, financing and zoning.

As in McDonnell’s case, the trial court gave the jury a broad definition of the term “official act” in the context of corruption charges. The judge told the jury that “official act” includes “any action taken or to be taken under color of official authority.”[5]

While the charges against Silver included actions that were undoubtedly “official acts” (such as voting as a member of the State Assembly), the Second Circuit concluded that, under the Supreme Court’s decision in McDonnell, the jury instructions gave an overbroad definition of “official act.” The language of the instruction included “lawful conduct” such as arranging meetings and hosting events.

Though the government argued that even if erroneous, the improper jury instructions were “harmless error” because so many of the charges against Silver related to actions that were undeniably official acts, the court rejected this argument. Erroneous jury instructions can be considered harmless only if the government can prove that it is “clear, beyond a reasonable doubt, that a rational jury would have found the defendant guilty absent the error,” a very difficult standard to meet.

In both cases, the conviction reversals mean that the government needs to decide whether to bring second prosecutions under the same facts. The government declined to do so in the case of McDonnell,[6] but, so far at least, is promising to do so in the case of Silver.[7] Preet Bharara, the former United States attorney who oversaw the prosecution of Silver, predicted that the government would retry Silver and that the evidence was strong enough to convict him again under the new standard. [8]

Former majority leader of the New York State Senate Dean Skelos, also having been convicted of corruption for soliciting bribes and kickbacks in exchange for a variety of “official acts,” now likewise stands a good chance of seeing his corruption conviction overturned under the McDonnell decision, and he has been released from prison pending the results of his McDonnell-based appeal.[9]

Some commentators fear that by raising the bar for corruption convictions, the Supreme Court has made “life easier for corrupt public officials everywhere”[10] and one public official even pointed to the Silver decision as a “defining example of why the public is losing faith in its government institutions.”[11] Editorials around the country have called for countermeasures in response of this perceived loss in the battle against corruption.[12]

Still, the McDonnell decision was based on sound and long-standing criminal law principles of lenity[13] and avoidance of ambiguity[14] that require criminal laws to be clear and to give fair warning of their scope. Congress could, for example, change the corruption laws to specifically include things like setting up meetings and hosting events in exchange for gifts. So long as it does not do so, the Supreme Court will not allow convictions for actions not clearly prohibited by the statute.