If you were wondering why people hate the system, Sheldon Silver's conviction just got overturned

[BeyondGeography]

From The New York Times:

A federal appeals court on Thursday overturned the 2015 corruption conviction of Sheldon Silver, the once-powerful New York State Assembly speaker who obtained nearly $4 million in illicit payments in return for taking official actions that benefited others, according to evidence presented at his trial.

In vacating Mr. Silver’s conviction, the appellate court cited a United States Supreme Court ruling last year involving Bob McDonnell, a former Republican governor of Virginia, that narrowed the definition of the kind of official conduct that can serve as the basis of a corruption prosecution.

The United States Court of Appeals for the Second Circuit in Manhattan concluded, in light of the Supreme Court’s narrower definition, that the jury instructions given by the judge in Mr. Silver’s trial were erroneous and that a properly instructed jury might not have convicted him.

“We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José A. Cabranes wrote for a unanimous three-judge panel of the Second Circuit. “The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty.”

“Given the teachings of the Supreme Court in McDonnell,” Judge Cabranes added, “and the particular circumstances of this case, we simply cannot reach that conclusion.”

Prosecutors may retry Mr. Silver, a 73-year-old Democrat from the Lower East Side of Manhattan who served for more than two decades as Assembly speaker.

Mr. Silver was convicted on Nov. 30, 2015, of honest services fraud, extortion and money laundering in one of the most prominent corruption trials in New York City in decades.

https://www.nytimes.com/2017/07/13/nyregion/sheldon-silvers-conviction-is-overturned.html

Sounds like the Supreme Court's McDonnell ruling has all but officially sanctioned corruption, making convictions in such cases next-to-impossible to obtain unless, as an NYT commenter put it, the accused is videotaped receiving a paper bag wilth BRIBE written across it.

[Cicada]

1. Don't over interpret this ruling

The jury instructions used an out of date definition of "official action." Silver may be retried using the updated definition and he may be found guilty again.

[BeyondGeography]

2. That's a whole lot of time and expense based on your say-so, isnt' it?

You might be right, in this case, but what kind of message does it send for the prosecution of corruption cases generally? Many rate the impact of McDonnell right up there with Citizens United in terms of what it will do to our political culture.

[Cicada]

5. Why did all nine justices agree?

I can't see Ginsburg opening the floodgates to corruption so I find it hard to view the ruling in O'Donnell as apocalyptic.

[BeyondGeography]

6. WaPo: The Bob McDonnell effect: The bar is getting higher to prosecute public corruption cases

To substantiate corruption charges, prosecutors must prove the person suspected of wrongdoing performed an official act in exchange for some benefit. In the McDonnell case, the Supreme Court said that official act “must involve a formal exercise of governmental power, and must also be something specific” — effectively raising the bar on what constitutes corruption.

...Former U.S. Attorney Preet Bharara, who was in charge when Silver was convicted and sentenced, wrote on Twitter that the evidence was “strong,” and the Supreme Court had “changed the law.”

...Kelly Kramer, a white-collar criminal defense attorney at the Mayer Brown law firm, said that Silver’s conviction had long been considered “one of the most vulnerable” after the Supreme Court’s decision on McDonnell. He said while it was unlikely many other convictions would be thrown out in a similar way, prosecutors would likely now bring fewer public corruption cases, knowing the high bar they have to meet.

“What I think it means is there’s a lot of cases where there’s kind of inappropriate or unappealing behavior by politicians, and that kind of stuff isn’t going to get prosecuted unless the government can really point to a specific vote or funding grant or official action,” Kramer said.

https://www.washingtonpost.com/world/national-security/the-bob-mcdonnell-effect-the-bar-is-getting-higher-to-prosecute-public-corruption-cases/2017/07/13/5ac5745c-67e6-11e7-9928-22d00a47778f_story.html?utm_term=.e5bc4956b1f2

We've gone to a darker place. Sometimes what smells like garbage actually is garbage, the wisdom of the Notorious RBG notwithstanding.

[Cicada]

7. I am sure all 9 justices AGREE with the Washington Post

Those justices know their unanimous ruling makes it harder to prosecute corruption. But they ruled that the statute which makes certain "official acts" illegal does not apply to "all acts." It only applies to Official Acts. In other words the statute does not outlaw all corruption. It only outlaws certain corruption. If congress wants to outlaw a broader subset of corrupt acts it may do so. But so far they have only outlawed corruption involving the limited number of things an official may do which involves an "official act."

[BeyondGeography]

9. Sometimes the law is an ass

9-0, I should care? Any ruling that makes it harder to pursue corruption cases post-CU is very bad news for the public.

[Cicada]

11. Don Siegelman ring a bell? Some corruption is ok

It is tempting for politicians to put political opponents in jail. Remember the "lock her up" chants by those who want Hillary jailed? It is so tempting we need to make it hard to lock up politicians.

When politicians use criminal prosecutions to eliminate political opposition we get civil war. So just as it is better for 10 guilty men to go free than for one innocent man to be jailed maybe it is better for 5 crooked pols to go free than for one Don Siegelman to rot in jail.

[BeyondGeography]

12. Do you have anything of substance to offer

other than 9-0, Siegelman and Lock Her Up (which is completely irrelevant). Honestly, I'm interested.

Here's another view on the potential fallout from McDonnell:

... using Mr. 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.”

...Mr. 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 O.K.,” 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.”

https://www.google.com/amp/s/mobile.nytimes.com/2017/07/13/nyregion/sheldon-silver-bob-mcdonnell.amp.html

[Cicada]

15. Nothin you said contradicts what I said

In many places it is legal (or was legal) to put a mirror on your shoe and look up skirts. That should be illegal and then in many places a law has been passed making it illegal. But you can't just convict someone for a nonexistent law. In the O'Donnell case Mr O'Donnell acted corruptly. But all 9 Justices said that his actions were not a violation of the statute. They said the statute makes it illegal only to do certain specified acts for money (or watches), and what O'Donnell did was NOT one of those specified acts. Maybe Congress will pass a law outlawing what O'Donnell did. But until then it is legal even if it is corrupt and despicable.
My post was to correct the statement that what the Supremes did was to side with Capital over justice. That claim smears some people I greatly admire - Ruth Bader Ginsburg, whose opinions are so magnificently written that they almost bring tears to my eyes because they reveal how awesome the human mind can be, Justice Sotomayor and Justice Breyer. I think it is valuable to defend them against misguided criticism.

[Docreed2003]

3. Would view the fact with distaste????

Seriously? That's where we are at as a nation? Where corruption is merely distasteful?

[BeyondGeography]

4. It's offensive; he trades his office for $4 million and it's a question of "taste"

This Supreme Court has been diligent in its takedown of the public good in favor of capital, this being just the latest example of how that all turns out. And now back to Trump's latest tweets, I guess.

[Cicada]

8. All nine justices take down the public good in favor of capital?

No. Ginsburg and Sotomayor don't do that. Yet they agreed with the opinion. To me that means that the statute did not outlaw all corruption. It only outlawed corruption linked with a narrow set of actions fitting within the narrow meaning of "official acts." I agree we should outlaw other corruption as well beyond the limited set of deeds called "official acts" But Congress has not done that. What the law should be is not the same as what it is.

[BeyondGeography]

13. He used his position to give $500K in grants

to a Dr. who referred mesothelioma patients to his private law firm. In return, Silver was paid millions of dollars in commissions from the resulting settlements. $4 million in his pocket in return for $500k in state money. This is the behavior that the appeals court called "distasteful." It WAS an official act and he still walks.

[Cicada]

14. No, he doesn't walk. His trial was simply voided.

His trial used jury instructions which misstated what the law was, based on the subsequent O'Donnell opinion. So that trial is in effect cancelled. But the Feds are free to try him again using this time correct jury instructions as to what the law is.

[Blue_Tires]

10. Yeah, I knew Rommel McDonnell was going to set an ugly precedent

His appeal was a crock