There was a time when political corruption might have been described — as a former Supreme Court justice once said of pornography — as something you knew when you saw it.
But last summer, after the court issued a landmark decision overturning the graft conviction of Bob McDonnell, the onetime governor of Virginia, it became much harder to define what it meant for a politician to partake in an illegal quid pro quo.
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After that ruling, many prosecutors and government watchdogs expressed anxiety that the court had created a safe harbor for a subtle, wink-and-nod version of corruption. The court had essentially made it legal, these critics said, for elected officials to enrich themselves by engaging in unseemly forms of transactional politics.
That argument could apply to the case of Sheldon Silver, once the mighty speaker of the New York state Assembly, whose corruption conviction was overturned by an appeals court Thursday — among the first federal verdicts to be reversed as a result of the McDonnell decision.
While cautioning that Silver, a Democrat, may yet be convicted at a retrial, several legal experts said his case had set a precedent that could affect those of other politicians found guilty of corruption — and could also have a chilling effect on new public integrity investigations.
“Prosecutors were concerned from the start that the McDonnell decision would allow a lot of reprehensible behavior to go unpunished, and that seems to be precisely what happened here,” said Peter Zeidenberg, a former public corruption prosecutor in Washington who is now in private practice. “This, indeed, may be the beginning of a parade of horribles.”
McDonnell, a Republican, was convicted in 2014 of helping a diet-supplement mogul, who had given the governor and his wife gifts and loans, do business in Virginia, largely by arranging meetings on the mogul’s behalf and attending public events with him. The central finding in the Supreme Court’s reversal of the verdict was that McDonnell’s favors did not qualify as official acts of his office.
In its ruling in Silver’s case, the 2nd U.S. Circuit Court of Appeals cited not only the McDonnell decision, but also another Supreme Court case: Skilling v. United States. If the McDonnell decision narrowed the scope of what is illegal for a politician to give — not, say, a simple favor like making a phone call — the Skilling decision narrowed the scope of what is illegal for an official to receive: It must be an overt bribe or kickback.
Together, the two decisions may have eroded the definition of corruption to the point where “politics as usual now seems to encompass personally profiting from horse-trading,” said Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington.
Bookbinder added that, using Silver’s case as a guide, it may be possible to map the boundaries of how courts may define corruption. “It looks like a politician will now have to take a very formal action” — such as casting a favorable vote for a donor or awarding a government contract to a friend — “for it to be considered illegal,” he said. “The problem is that a lot of political power is wielded less formally than that.”
In many ways, the reversal of Silver’s conviction was based on a quirk of timing: McDonnell’s case made its way to the Supreme Court in the midst of the former Assembly speaker’s legal ordeal. The appeals court said in its ruling that there was sufficient evidence to convict Silver, but it chose to dismiss the guilty verdict because the jury had not been instructed on the new definition of corruption established by the Supreme Court.
There could be profound consequences for other elected officials who have been found guilty of graft or are facing trial on corruption charges. Among them are Dean Skelos, the former Republican majority leader of the New York state Senate who was sentenced last year to five years in prison for using his office to assist his son; Chaka Fattah, a former Democratic congressman from Philadelphia who was convicted last year on bribery, money-laundering and racketeering charges; and Sen. Robert Menendez, D-N.J., who is scheduled to go on trial in the fall on charges that he traded political favors for luxury vacations, campaign donations and expensive airline flights.
Some experts said the McDonnell ruling would probably not extend to old corruption cases, adding that it was difficult to reverse guilty verdicts that had already been appealed. Others noted that the new legal landscape could put a chill on future corruption investigations.
In March, for instance, the U.S. attorney’s office in Manhattan, which prosecuted Silver and Skelos, said it would not seek charges against Mayor Bill de Blasio of New York after a monthslong inquiry into whether his administration had traded favorable government actions for political donations.
In a statement at the time, the office said it had found a pattern in which the mayor or his associates had solicited contributions from donors seeking favors from the city, but had decided not to bring a case after weighing, among other things, the “high burden of proof” created by the McDonnell ruling.
Bookbinder said his chief concern was that the McDonnell case would provide “a blueprint to corrupt officials.”
“They’ll understand that if you give me $50,000 or a Rolex watch, all I have to do is say I’ll introduce you to some people and it will be OK,” he said. “Everybody, in other words, will learn the language of corruption. It will still be a bribe, but it will fall outside of anything that is technically illegal.”