November 30 and December 11, 2015 will be remembered as the days when U.S. Attorney Preet Bharara’s record officially caught up to his reputation as an anti-corruption crusader in the most notorious state Capitol in the United States.
With the respective public corruption convictions of Sheldon Silver, the former Democratic Assembly speaker, and Dean Skelos, the ex-Senate Republican majority leader, Bharara has picked off two of the most powerful elected officials in the state – veritable institutions of their parties, legislative gatekeepers and now symbols of Albany’s culture of cronyism.
For a prosecutor who has staked his legacy on public integrity cases, Bharara has outdone his headline-happy predecessors in the Southern District, proving with each conviction that he has the appetite to pursue systemic changes in Albany that have, thus far, proved elusive on the legislative stage.
The Silver and Skelos convictions could become watershed moments for ending corruption if they intensify the drumbeat for real ethics reform in the state Capitol. But even with Bharara’s bulletproof successes and the rampant speculation about his future ambitions, it’s important to remember that public integrity and democracy in New York should not rest in the hands of a prosecutor.
Before Silver’s arrest in January on corruption charges, New York political circles were already abuzz about Bharara and his office’s record of nailing legislative scalps. His conviction record reads like a roll call vote: former state Sens. Vincent Leibell, Hiram Monserrate, Carl Kruger and Malcolm Smith, as well as ex-City Council members Dan Halloran and Larry Seabrook – legislators who, in hindsight, might be characterized as low-hanging fruit for a prosecutor prioritizing public corruption.
The Silver and Skelos convictions were different. Here we have two of the three former “men in a room” (Gov. Andrew Cuomo being the third) facing decades in prison for using their office to line their own pockets, and, in Skelos’ case, the pockets of his son, Adam.
Convincing a jury of quid pro quo beyond a reasonable doubt is no easy task, even for the most savvy of prosecutors. Just ask Bharara’s colleague Richard Hartunian, U.S. attorney in the Northern District. In 2009, a jury found Joe Bruno, Skelos’ predecessor as Senate majority leader, guilty on “honest services” charges brought by Hartunian, only to see the U.S. Supreme Court narrow the application of that law to cases involving bribes and kickbacks, vacating Bruno’s conviction. When Hartunian subsequently indicted Bruno on bribery charges – with no new evidence – he found the jury significantly more difficult to convince. Bruno would be acquitted on all counts in May 2014.
When it came to Silver and Skelos, Bharara and his prosecutors built the cases that Hartunian never could, with his media savvy serving as a nifty supplemental tool. Bharara has long toed the line of self-promotion, a quality that helped previous Southern District U.S. attorneys like Robert Morgenthau and Rudy Giuliani run for higher office. He is cautious but calculating with the press – publicly modest and quick to deflect credit to his staff, but with a politician’s gift for sharp rhetoric.
However, Bharara’s silver tongue has, at times, shown signs of tarnishing. He drew a rebuke from a district court judge during his post-Silver indictment media run for straying “so close to the edge of the rules” governing comments that could prejudice a jury. In a more recent interview on “The Brian Lehrer Show” after the Silver and Skelos convictions, Bharara bristled when the host suggested that some critics say he talks out of turn when harping on the need for systemic reform in Albany.
“(Public corruption) is not a wholly different area of prosecution and it makes no sense to me, except that people have personal agendas and don’t like it because they don’t like people sniffing around when there’s bad conduct and when there’s smoke and fishy behavior,” Bharara said. “The idea that the United States attorney would not speak generally about root causes and ways to deter public corruption is nonsensical.”
Criticism aside, Bharara has used his bully pulpit to great effect – forcing legislators to think twice about misusing their public office for personal gain. The fact that the Legislature was hesitant to do anything bold on the 421-a tax credit or rent regulations last session was as clear a signal as any that Skelos and Silver’s real estate ties – the extent of which was revealed in their respective indictments – had lawmakers running scared.
Bharara has also done more than any lawmaker in moving the needle on the ethics reform conversation in Albany without coming off as flagrantly self-serving.
Consider that Bharara has not shied away from highlighting two reform pillars that have historically been anathema to the executive chamber and the Legislature: term limits and limiting outside income. Whereas Cuomo has thrown up his hands and largely punted on major ethics reform – “I don't care how strong the law is,” he said recently, “if a person is going to break the law, the person is going to break the law” – Bharara has very effectively wielded the Silver and Skelos convictions as a cudgel.
Here’s what Bharara had to say about term limits, via “The Brian Lehrer Show”: “It shouldn’t surprise people to learn that when people have power for a very long time that is unopposed and people can’t blow the whistle on the leaders without fear of really serious retribution and maybe even sidelining, that corruption can flourish.”
And from the same interview, Bharara on limiting outside income: “There’s something to be said for the fact that it’s a little bit harder to get away with bribery, a little harder to get away with extortion if there are more strict limits on outside income. It is much harder to disguise a bribe or kickback as a referral if you don’t have the ability to have the same kind of outside income.”
These jabs are Bharara’s version of the “perp walk.” As U.S. attorney, Giuliani made a habit of parading handcuffed suspects in front of the media to boost whatever case he was trying, which has since become a typical tactic in many prosecutors’ tool belts. But whereas the perp walk served as free publicity for Giuliani, who harbored obvious mayoral ambitions, Bharara has managed to boost his public profile with each conviction while carefully cultivating the image of a white knight who stands above the fray.
Unlike prosecution of white-collar or organized crime, Bharara’s relentless pursuit of public corruption cases is not an obvious crowd-pleaser. A Dec. 14 Siena poll found that 52 percent of New York state voters did not follow the Silver or Skelos cases closely or at all. That same poll showed that nearly 90 percent of voters are somewhat or very concerned about corruption in the state Capitol, but that’s hardly a change from the past.
“The question is, does corruption give you more energy in a run for higher office or a higher profile than going after Wall Street or Mafia? I’m not so sure it does,” said one veteran Albany insider. “People care more about crime and money than they do about nabbing politicians. They see politicians as easy pickings, not very dangerous.”
It’s a difficult balancing act for a prosecutor to use corruption convictions, even subtly, to advocate for ethics reform, and frankly, that’s not Bharara’s job. He has done his part by shining a spotlight on the backroom in Albany, and used various media platforms to nudge elected officials and the public at large to weigh in.
But in the same way that terrorist attacks around the world improve the campaign prospects of fear-mongering presidential candidates like Donald Trump and Ted Cruz, continued inertia from Cuomo and the Legislature on ethics reform could give Bharara an excuse to attack corruption from a higher platform – whether as governor or even the next U.S. attorney general.
Moreover, the degree to which Bharara persists in pursuing corruption – and, as an Obama appointee, it remains to be seen whether he will continue in his role should the Democrats lose the White House in 2016 – can create an opportunity for a transformative moment leading up to the state’s Constitutional Convention in November 2017. Among the many topics that good-government advocates hope to entertain during the convention will be whether the Legislature should be changed from a part-time job to a full-time job. That question was central to both the Silver and Skelos cases, in which nebulous relationships outside of their public office led to explicit instances of quid pro quo.
Regardless of what happens in the future, Bharara has fundamentally altered not only the scope and priorities of the U.S. attorney’s office, but the political conversation in the state Capitol. For the first time as governor, Cuomo will not be joined on the dais at the January State of the State address by Silver and Skelos, his former partners in power. The governor should acknowledge that symbolism in a meaningful way by devoting some of his legislative agenda to ethics reform, along with priorities such as raising the minimum wage and addressing the state’s homelessness crisis. It would be shockingly tone-deaf for a politician as skilled as Cuomo not to put his finger in the air and notice that the winds are moving in the direction of greater public accountability.
And for that, he can begrudgingly thank Preet Bharara.
Nick Powell is City & State's opinion editor. Email him at NPowell@cityandstateny.com or find him on Twitter: @nickpowellbkny.