Jon Campbell, Gannett Albany Bureau - June 27, 2016
WASHINGTON - ALBANY -- A key U.S. Supreme Court decision Monday could aid former state Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos as they appeal their federal corruption convictions.
The court unanimously ruled Monday morning in favor of former Virginia Gov. Bob McDonnell, vacating his 2015 corruption conviction and sending his case back to a lower court. McDonnell had been conviction of extortion and fraud for accepting more than $175,000 in loans and gifts from a Virginia business executive.
The case centered on the meaning of "official act," with the Supreme Court ruling it's not enough to convict a government official if they only set up a meeting or organize an event for a gift giver and nothing more.
McDonnell's case was being watched closely by attorneys for Silver and Skelos, who were separately convicted of various bribery and fraud charges last year and automatically ejected from office. The case could have implications for both former New York politicians, whose bail-pending-appeal hearings were postponed until after the McDonnell decision came down.
"To qualify as an 'official act,' the public official must make a decision or take an action on that question or matter, or agree to do so," Chief Justice John Roberts wrote in the court's unanimous opinion. "Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of 'official act.'"
Whether McDonnell's case will ultimately provide a lifeline to Skelos and Silver -- who were both sentenced to prison earlier this year -- remains to be seen.
Silver was convicted of pocketing $4 million in a pair of schemes, including one in which he directed $500,000 in state grants to a Columbia University researcher who had been referring mesothelioma patients to him. In exchange, Silver sent the patients to Weitz & Luxenberg, a high-powered personal-injury firm that was paying him referral fees.
Skelos, meanwhile, was convicted of securing jobs for his son with politically connected companies, including an Arizona environmental firm that then received a lucrative contract from Nassau County, Skelos' home county.
It will be up to the 2nd U.S. Circuit to decide whether the Supreme Court's interpretation will help Skelos and Silver on the appeal.
"The 2nd Circuit on appeal is going to look at the record very, very closely to make sure that there's evidence that supports beyond a reasonable doubt the connection between some actual, official action on the part of Shelly Silver and Dean Skelos tied directly to bribery or blackmail," said Albany Law School professor Vincent Bonventre, a longtime court watcher.
James Margolin, a spokesman for U.S. Attorney Preet Bharara, said Silver and Skelos' actions are still covered under the court's new interpretation.
“While we are reviewing the McDonnell decision, the official actions that led to the convictions of Sheldon Silver and Dean Skelos fall squarely within the definition set forth by the Supreme Court today," Margolin said in a statement.
Buffalo based attorney Dennis C. Vacco, himself a former U.S. Attorney for Western New York as well as having served as NY State Attorney General, also believes the odds are unlikely the convictions of the New York lawmakers will be overturned on grounds similar to those raised by former Governor McDonnell in his appeal.
"I believe that the McDonnell ruling by the Supreme Court will not upset the convictions of Shelly Silver and Dean Skelos," Vacco told WGRZ-TV.
G.Robert Gage, Skelos' attorney, declined comment, while a Silver attorney did not respond to a request for comment.
It's not the first time a key Supreme Court decision has become an issue in the conviction of a New York legislative leader.
In 2009, former Senate Majority Leader Joseph Bruno was convicted of fraud in connection with consulting payments from an Albany businessman, who also purchased a "virtually worthless" horse from Bruno.
But the Supreme Court in 2010 narrowed the "theft of honest services" law Bruno was convicted under. He was re-tried and acquitted.
Susan Lerner, executive director of good-government group Common Cause/NY, criticized the Supreme Court's decision Monday, saying the court "lives in a fantasy land that defies the common sense understanding of two New York juries."
"By confirming that a pay-to-play culture is an inherent part of day-to-day politics, the Supreme Court has opened the floodgates for special interest groups to influence politicians, at the expense of American democracy," Lerner said in a statement.
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