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What you need to know for 09/26/2017

Foss: Overturning of Silver's conviction sends bad message

Foss: Overturning of Silver's conviction sends bad message

I'm not holding out much hope that corrupt politicians will ever be held accountable
Foss: Overturning of Silver's conviction sends bad message
Sheldon Silver, once the state Assembly speaker, leaves the U.S. Courthouse in May 2016 after his sentencing.
Photographer: Gregg Vigliotti/The New York Times

It's certainly possible that former Assembly Speaker Sheldon Silver will be convicted when prosecutors retry him on corruption charges. 

But I'm not holding out much hope that he will be. 

In fact, I'm not holding out much hope that corrupt New York politicians will ever truly be held accountable for their behavior. 

Anyone with eyes can examine the case laid out by federal prosecutors and come to the conclusion that Silver benefited mightily from his position as one of New York's most powerful political leaders. 

But proving that Silver engaged in gross, unseemly and unethical conduct is not the same as proving that he's guilty of public corruption. 

At least, not under the narrower definition of public corruption laid out in a precedent-setting 2016 Supreme Court decision overturning the graft conviction of former Virginia governor Bob McDonnell.

Much like former Senate Majority Leader Joseph L. Bruno before him, Silver is the beneficiary of a timely ruling from the highest court in the land. 

And he won't be the only politician who benefits from the McDonnell decision, which makes it harder for prosecutors to secure a conviction for public corruption. 

Which is why I give prosecutors credit for vowing to retry Silver. 

Convicting Silver a second time, under the new, more stringent standard laid out by the Supreme Court, won't be easy. 

If he walks, prosecutors might very well start shying away from all but the most outrageous public corruption cases. 

Nobody likes to lose, least of all federal prosecutors, and the real impact of the McDonnell decision doesn't lie in the Silver case, or any other particular case, but in the cases prosecutors never pursue, because they don't want to risk an embarrassing defeat. 

Last week I caught an NPR interview with Jesse Eisinger, a ProPublica reporter who has a new book out, titled "The Chicken---- Club: Why the Justice Department Fails to Prosecute Executives." 

In the interview, Eisinger is critical of former U.S. Attorney Preet Bharara, who became something of a folk hero for prosecuting Silver, former Majority Leader Dean Skelos and other prominent political figures. 

He contends that Bharara failed to prosecute the corporate executives whose bad behavior caused the Great Recession, in part because those cases were hard and involved taking on prominent people. The one good thing Bharara did, he suggests, is pursue powerful politicians. 

"He is an aggressive prosecutor in at least one realm," Eisinger noted.  

Bharara's aggression was good for New Yorkers. 

At a time when the New York State Legislature has shown zero interest in passing meaningful ethics reform or changing its ways, Bharara stepped in, painted an ugly picture of a rotten system and suggested that it was actually possible to do something about it.  

Unfortunately, the overturning of Silver's conviction raises the possibility that maybe it isn't possible to do anything about it, after all. 

Which is a depressing outlook. 

But also, I think, a realistic one. 

Reach Gazette columnist Sara Foss at sfoss@dailygazette.net. Opinions expressed here are her own and not necessarily the newspaper's.

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