It is with broken hearts that we at The Jewish Press note the failure of former NYS Assembly Speaker Sheldon Silver – a heroic advocate for our community for more than three decades – to secure either a pardon from outgoing president Donald Trump or a Supreme Court review of his case.

He has now served approximately five months of a six-and-a-half-year sentence. Some peculiar Supreme Court precedents and protocols render the high court unable to address all wrongs and to serve as a true court of last resort. But Trump’s failure to follow through on a Silver pardon, even after the Silver family was notified that one was coming, was a different order of business.

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As it now appears, some 11th hour shameful opposition on the part of freshman Republican Congresswoman Nicole Malliotakis and the Democratic Governor of New York, Andrew Cuomo, ate away at the resolve of an embattled Donald Trump, consumed by impeachment politics and a looming trial in the United States Senate.

This is not to justify Trump’s wholly disappointing decision not to follow through, but to provide perspective on some political treachery.

Why Malliotakis had a problem with the release of an ill, 77-year-old, former Democratic politician, with no prospect whatsoever of returning to politics, simply eludes us.

As for Cuomo, he reputedly wanted to draw a distinct line between himself and an incarcerated prominent fellow Democrat. And he went so far as to suggest that a pardon for Silver – whose advocacy for the Jewish community was legendary – was so unmerited that it had to be a special favor Trump was granting to Jewish donors.

In the light of his recent outrageous targeting of the Jewish community in the course of the coronavirus lockdowns, there would seem to be no end to the anti-Semitic tropes Cuomo is willing to invoke.

Of course, underlying all of this rebuke is the inescapable conclusion that Silver never got a fair trial. The elements necessary for a conviction under the statute applied in the Silver prosecution, the Honest Services Law, are complicated and elusive enough to confound any jury under normal circumstances. Indeed, the United States Supreme Court has been perplexed about its enforcement since its enactment in 1988.

In the Silver case, despite there not being any independent evidence that he had agreed to, or did, alter his vote or decision-making in the legislature in return for personal gain, Silver was nevertheless convicted on the notion that his wholly subjective state of mind was what mattered and a jury was able to determine that mindset.

Unfortunately, from the get go, a vendetta by an out-of-control Manhattan US Attorney, Preet Bharara, who was intent on driving him from office, and an all too cooperative New York press eager to portray Silver as the embodiment of evil, the prospect of a grand jury not predisposed to indict and a trial jury not predisposed to convict was just not in the cards.

We are not alone in thinking that the atmosphere was infected with serious anti-Silver bias by Bharara. The judge presiding over the Silver Grand Jury and the Silver trials shared this belief. In an opinion which ultimately rejects arguments to dismiss the Silver indictment, federal Judge Valerie Caproni speaks of a “media blitz orchestrated by the US Attorney’s Office in the days following Mr. Silver’s arrest.”

She also notes with obvious dismay that at one point, “although the Government’s Complaint ha not yet been unsealed, the press began reporting that Silver would be arrested imminently along with the substance of the charges against him.” That knowledge had to be within the exclusive purview of he U.S. Attorney’s office.

Although it’s proper for a prosecutor to go public with the charges against an accused, it is improper to suggest actual guilt which is inherently prejudicial. A jury is supposed to make its decision based upon evidence formally presented and subject to challenge.

Caproni cites several instances, however, where comments of the U.S. Attorney “could reasonably have been interpreted to reflect the U.S. Attorney’s personal views as to Silver’s character or guilt with respect to the charges filed against him.” And stating the obvious, Caproni observed, “Given Silver’s status as one of the three most powerful politicians in New York state government, it is not surprising that the U.S. Attorney’s comments were covered widely in the press.”

Caproni also writes sarcastically of Bharara’s following up an anti-Silver press conference with a formal press release: “For members of the media who missed the press conference, the U.S. Attorney’s office also issued a press release…. The press release highlighted some of the U.S. Attorney’s most salient comments, in particular regarding the relationship between the charges against Silver and a broader ‘culture of corruption’ in Albany.”

Here again, Bharara went beyond reciting charges and implied guilt by associating Silver with an established “culture of corruption.”

The judge was particularly disdainful of a Bharara speech about “public corruption” delivered the day after he gave a press conference announcing Silver’s arrest. The timing obviously tended to tie Silver to established instances of corruption and drew inordinate press coverage:

The Court finds the Government’s argument that the timing of the U.S. Attorney’s speech at the New York Law School event was merely coincidental to be pure sophistry. While the New York Law School speaking engagement was apparently scheduled long before Silver’s arrest, it was the Government that decided when to arrest Silver. Given the fact that the U.S. Attorney apparently wanted to address the topic of public corruption in his speech, a far more prudent course – and one that would have been far more respectful of the Defendant’s presumption of innocence and fair trial rights – would have been to delay arrest until after the U.S. Attorney’s speech and for the U.S. Attorney to stay focused on politicians who have actually been convicted.

Given the fact that in the Silver case Caproni was often a difficult presence for the Silver team, her comments on the existence of substantial negative pretrial publicity orchestrated by Bharara are particularly significant. Plainly, even she believed something untoward was in play, and her conclusion that it did not preclude a fair trial seems counterintuitive at best.

As the saying goes, in politics, what goes around comes around and, as far as we’re concerned, Cuomo and Malliotakis’s role in the pardon affair is an indelible stain on the public record of each.

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