Center for the Advancement of Public Integrity Hosts Panel on Sheldon Silver Case

Professors Richard Briffault and Daniel Richman Join CAPI Executive Director Jennifer Rodgers in an Analysis of the Law Underlying the Criminal Complaint

New York, February 16, 2015—New York Gov. Andrew Cuomo’s recently proposed anti-corruption reforms wouldn’t have prevented the alleged kickback scheme of former New York Assembly Speaker Sheldon Silver, Columbia Law School Professor Richard Briffault told students, faculty, and guests at a Feb. 4 lecture sponsored by the Center for the Advancement of Public Integrity.

Silver, who was arrested last month and who has since resigned from his leadership role, is accused of using his power as a state official in exchange for kickbacks funneled through two law firms. Cuomo’s proposals do call for new rules on disclosing outside pay, but preventing Silver’s alleged conduct would have required that he disclose all the clients of the law firms he maintained a relationship with, Briffault said.
Briffault spoke as part of a panel discussion on the Silver case, along with former federal prosecutors Professor Daniel C. Richman and Jennifer G. Rodgers, CAPI’s executive director. Briffault and Columbia Law School Professor Lance Liebman served on the Moreland Commission, which was tasked with investigating corruption in the state before Cuomo disbanded it last year. Some of the Moreland Commission’s investigative work was used by Southern District of New York U.S. Attorney Preet Bharara ’93 whose office filed the complaint against Silver.
Rodgers began the panel with an overview of the charges.
“The basic claim is that Silver used his unfettered access to state taxpayer money as part of a quid pro quo,” Rodgers said.
Richman explained the federal law underlying the case, including the theft of honest services fraud statute, which the U.S. Supreme Court limited in a 2010 decision to cover only conduct that results in bribes or kickbacks.
“That’s a public official giving or promising official acts in exchange for something of value,” Richman said. “Which is a pretty limited paradigm in terms of capturing stuff that bothers us.”
In a Q&A session at the end of the panel discussion, each of the panelists said it was appropriate for federal prosecutors to play a role in rooting out corruption at the state level.
“The laws were passed by representatives from all the states,” Richman said. “The Supremacy Clause isn’t just a theory.”
Briffault said sometimes federal prosecution might be necessary.
“In New York, there’s an ongoing problem of the inability of legislators to police themselves,” he said.
The discussion was sponsored by the Center for the Advancement of Public Integrity with support from Debevoise & Plimpton.