Prosecutors and Political Corruption

The Second Circuit Tosses Another Major Phreet Bharara Case

By The Wall Street Journal Editorial Board

Has the Supreme Court handed corrupt politicians a free pass? That’s the taunting question following an appellate court’s decision last week to toss the conviction of former New York Assembly Speaker Sheldon Silver in the wake of the High Court’s landmark 2016 McDonnell ruling. We think the answer is no, but prosecutors will have to follow the law better than former U.S. Attorney Preet Bharara did.

Readers may recall that a unanimous Supreme Court overturned the conviction of former Virginia Governor Bob McDonnell because prosecutors had too broadly interpreted the meaning of a corrupt “official act.” The act couldn’t merely be setting up a meeting or hosting an event, even if the politician had received personal gifts from the person who benefitted from the meeting, as Mr. McDonnell had. It must involve a formal exercise of government power and the public official must make the corrupt decision or take the action.

The ruling is an important check on prosecutors who have pursued corruption cases with too little evidence and for routine constituent service. But some prosecutors warned that politicians could get away with anything short of extorting a direct bribe. They’re now pointing to Silver’s appellate victory as proof.

Not so fast. The Second Circuit Court of Appeals didn’t vacate Silver’s conviction on grounds that the evidence was insufficient. Judge José Cabranes, one of the country’s most distinguished appellate judges, explicitly wrote for the court that “the evidence presented by the Government was sufficient to prove” the extortion, honest-services fraud and money-laundering counts against Silver.

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