NEW YORK (Legal Newsline) – U.S. Attorney Preet Bharara, whose indictment of former Assembly Speaker Sheldon Silver has sparked accusations of misconduct from Silver, seized the moment to dash for the high ground of clean government.
On March 5, in a brief opposing a motion to dismiss the indictment, he argued that his statements since Silver’s arrest applied to corruption in general and not to Silver.
“Nothing in any of the legal or ethical sources cited by the defendant prohibits the government from describing its charges to the public, from placing those charges in context, and from speaking more broadly on issues of criminal justice,” he wrote.
“The U.S. Attorney’s comments about the underlying causes of public corruption are no different than his comments about the causes of gang violence in Newburgh, the heroin and prescription pill epidemic, securities fraud on Wall Street, or civil rights abuses on Rikers Island.”
Bharara wrote that his office, before and during his tenure, provided leadership in “combating public corruption through prosecutions of public officials who use their office for self enrichment or who otherwise abuse their official positions.”
He wrote that no court has dismissed an indictment due to pretrial publicity.
“The defendant does not proffer any evidence that the indictment was not properly returned, that anything improper occurred in the grand jury, or that he suffered any actual prejudice in the return of the indictment,” Bharara wrote.
He ignored Silver’s request for explanation of differences between the indictment and the criminal complaint that preceded it.
The complaint alleged that Silver received more than $5 million in kickbacks while of counsel at Weitz and Luxenberg, an asbestos firm in New York City.
The indictment alleged that he took less than $3 million.
Agents arrested Silver on Jan. 22, on charges of conspiracy, fraud, and mail fraud.
Bharara’s complaint alleged that Silver falsely reported payments from Weitz and Luxenberg as income he earned.
Bharara alleged that a doctor referred clients to Silver in exchange for $500,000 in grants that Silver directed to the doctor’s mesothelioma research center through his status in state government.
He alleged that after Silver stopped directing state funds to the research center, the doctor began dealing with a different firm.
He didn’t name the firm, but news sources identified it as the John Simmons firm in Alton.
The complaint did not name the mesothelioma doctor, but news sources identified him as Robert Taub of Columbia University.
The university immediately removed Taub as director of the research center, though he remains on the faculty.
Grand jurors indicted Silver on Feb. 19, finding he deprived citizens of his honest services by masking bribes and kickbacks as legitimate income.
They found he had no prior experience in asbestos cases, had no contact with clients, did not evaluate claims, and did not advise attorneys at the firm, which has denied knowledge of the alleged scheme.
They also found he went to great lengths to conceal his relationship with the doctor.
And, they found he kept secret from Weitz and Luxenberg that he allocated state funds to the doctor’s research center.
The indictment did not discuss the doctor’s deal with the Simmons firm.
On Feb. 24, Silver moved to dismiss the indictment.
Steven Molo of New York wrote, “From the outset, the prosecution has changed what should be a search for truth into an unrelenting media frenzy.”
“The effect of the U.S. Attorney’s actions is to convict in the media before even calling his first witness,” Molo wrote.
He wrote that the prosecution has taken the same approach in a number of recent cases, “pleading its case to the press before the accused has his day in court.”
“The time has come to end this,” he wrote.
Molo wrote that on Jan. 21, the government agreed to accept Silver’s voluntary surrender and keep the complaint under seal until his arrest.
At 1:55 a.m. on Jan. 22, the New York Daily News reported Silver’s imminent arrest and the substance of the charges, Molo wrote.
Similar stories appeared in various outlets throughout the night, he wrote.
“Following the arrest, the government drove Mr. Silver to the courthouse for arraignment, in custody and accompanied by federal agents,” he wrote.
“Prejudicial images of Mr. Silver arriving in the back of a government vehicle and subsequently exiting the courthouse among a throng of reporters featured prominently in news stories throughout the day.”
Molo wrote that Bharara made inflammatory statements about Silver’s guilt at a press conference “complete with Twitter feed.”
He wrote that at a New York Law School breakfast on Jan. 23, Bharara said, “People elected to make laws should not be breaking them.”
He wrote that Bharara should be called upon to explain his decision to initiate the case by complaint rather than indictment.
“It is inconceivable that the U.S. Attorney proceeded by way of complaint for any reason other than to set forth colorful allegations with the intention of prejudicing Mr. Silver – allegations that were later pared back in the indictment,” Molo wrote.
Bharara answered that the arrest “was handled with great sensitivity.”
He wrote that it was Silver himself who stood before reporters and cameras on the courthouse steps to make a statement.
He wrote that Silver couldn’t argue prejudice on the basis of vague reports in the middle of the night of a fact that became public in the morning.
He wrote that it is not unusual or inappropriate to use Twitter, “as a means of augmenting other, more traditional, means of providing information to the public.”
District Judge Valerie Caproni set a March 13 deadline for Silver’s reply.
On March 5, in a brief opposing a motion to dismiss the indictment, he argued that his statements since Silver’s arrest applied to corruption in general and not to Silver.
“Nothing in any of the legal or ethical sources cited by the defendant prohibits the government from describing its charges to the public, from placing those charges in context, and from speaking more broadly on issues of criminal justice,” he wrote.
Silver
“The U.S. Attorney’s comments about the underlying causes of public corruption are no different than his comments about the causes of gang violence in Newburgh, the heroin and prescription pill epidemic, securities fraud on Wall Street, or civil rights abuses on Rikers Island.”
Bharara wrote that his office, before and during his tenure, provided leadership in “combating public corruption through prosecutions of public officials who use their office for self enrichment or who otherwise abuse their official positions.”
He wrote that no court has dismissed an indictment due to pretrial publicity.
“The defendant does not proffer any evidence that the indictment was not properly returned, that anything improper occurred in the grand jury, or that he suffered any actual prejudice in the return of the indictment,” Bharara wrote.
He ignored Silver’s request for explanation of differences between the indictment and the criminal complaint that preceded it.
The complaint alleged that Silver received more than $5 million in kickbacks while of counsel at Weitz and Luxenberg, an asbestos firm in New York City.
The indictment alleged that he took less than $3 million.
Agents arrested Silver on Jan. 22, on charges of conspiracy, fraud, and mail fraud.
Bharara’s complaint alleged that Silver falsely reported payments from Weitz and Luxenberg as income he earned.
Bharara alleged that a doctor referred clients to Silver in exchange for $500,000 in grants that Silver directed to the doctor’s mesothelioma research center through his status in state government.
He alleged that after Silver stopped directing state funds to the research center, the doctor began dealing with a different firm.
He didn’t name the firm, but news sources identified it as the John Simmons firm in Alton.
The complaint did not name the mesothelioma doctor, but news sources identified him as Robert Taub of Columbia University.
The university immediately removed Taub as director of the research center, though he remains on the faculty.
Grand jurors indicted Silver on Feb. 19, finding he deprived citizens of his honest services by masking bribes and kickbacks as legitimate income.
They found he had no prior experience in asbestos cases, had no contact with clients, did not evaluate claims, and did not advise attorneys at the firm, which has denied knowledge of the alleged scheme.
They also found he went to great lengths to conceal his relationship with the doctor.
And, they found he kept secret from Weitz and Luxenberg that he allocated state funds to the doctor’s research center.
The indictment did not discuss the doctor’s deal with the Simmons firm.
On Feb. 24, Silver moved to dismiss the indictment.
Steven Molo of New York wrote, “From the outset, the prosecution has changed what should be a search for truth into an unrelenting media frenzy.”
“The effect of the U.S. Attorney’s actions is to convict in the media before even calling his first witness,” Molo wrote.
He wrote that the prosecution has taken the same approach in a number of recent cases, “pleading its case to the press before the accused has his day in court.”
“The time has come to end this,” he wrote.
Molo wrote that on Jan. 21, the government agreed to accept Silver’s voluntary surrender and keep the complaint under seal until his arrest.
At 1:55 a.m. on Jan. 22, the New York Daily News reported Silver’s imminent arrest and the substance of the charges, Molo wrote.
Similar stories appeared in various outlets throughout the night, he wrote.
“Following the arrest, the government drove Mr. Silver to the courthouse for arraignment, in custody and accompanied by federal agents,” he wrote.
“Prejudicial images of Mr. Silver arriving in the back of a government vehicle and subsequently exiting the courthouse among a throng of reporters featured prominently in news stories throughout the day.”
Molo wrote that Bharara made inflammatory statements about Silver’s guilt at a press conference “complete with Twitter feed.”
He wrote that at a New York Law School breakfast on Jan. 23, Bharara said, “People elected to make laws should not be breaking them.”
He wrote that Bharara should be called upon to explain his decision to initiate the case by complaint rather than indictment.
“It is inconceivable that the U.S. Attorney proceeded by way of complaint for any reason other than to set forth colorful allegations with the intention of prejudicing Mr. Silver – allegations that were later pared back in the indictment,” Molo wrote.
Bharara answered that the arrest “was handled with great sensitivity.”
He wrote that it was Silver himself who stood before reporters and cameras on the courthouse steps to make a statement.
He wrote that Silver couldn’t argue prejudice on the basis of vague reports in the middle of the night of a fact that became public in the morning.
He wrote that it is not unusual or inappropriate to use Twitter, “as a means of augmenting other, more traditional, means of providing information to the public.”
District Judge Valerie Caproni set a March 13 deadline for Silver’s reply.
