There they were, the Governor and the Speaker, side by side in parallel columns on page one of The New York Times. Surely, the semiotics of this twinning was no coincidence. Surely, the criminal complaint against the Speaker was timed for the same day as the Governor’s State of the State speech. And surely, too, whatever the outcome of the Speaker’s prosecution, the Governor and the Speaker are now linked in the ongoing saga of political corruption in New York State.
In July 2013, Governor Andrew M. Cuomo created the Moreland Commission to investigate corruption in Albany. This was a bold act, in keeping with his record as New York attorney general. Then, last March, he dissolved the commission. This was a shameful act. Cuomo’s justification was disingenuous, as was his claim to the Daily News editorial board last week that Silver’s arrest vindicates his action because the commission could not bring criminal cases. True, but it was not created to bring criminal cases. Its mandate was far broader. Cuomo’s executive order instructed the commission to investigate the board of elections, campaign finance laws, lobbying and “public corruption, conflicts of interest, and conflicts in State Government, including but not limited to [state] criminal laws relating to abuses of the public trust.” A federal prosecution can do none of this.
Why did Cuomo kill Moreland? The allegations in the criminal complaint against Assembly Speaker Sheldon Silver offer clues. In order to prevent discovery of his millions of dollars of outside income from legal fees, Silver leaned on Cuomo to disband the Moreland Commission. Whether or not that income would have revealed a crime—something the federal prosecution will eventually tell us—Silver wanted it kept secret. Cuomo capitulated. Either Cuomo was naïve about Silver’s motives or he understood them—more likely the latter because rumors of Silver’s high income from legal fees had persisted for years. But whether Cuomo was naïve or complicit doesn’t matter. In the end, he proved too weak to investigate seriously corruption in Albany. Silver may not have had to push very hard. The commission had also subpoenaed Buying Time, a media agency where Cuomo was a client.
An obscure legal ethics rule will have a leading role in Silver’s trial. The rule allows one lawyer to share a fee with another lawyer even if the first lawyer does no work. The rule requires written disclosures to the client, and it requires that the first lawyer accept responsibility for the other lawyer’s work in writing. Silver’s likely defense—already signaled—will be that it is both legal and ethical for a lawyer who does no work to share fees. Or if he violated the ethics rule by failing to do the required paperwork, he should be professionally disciplined, not federally prosecuted.
The thirty-five-page criminal complaint has the government’s response. It alleges that Silver used the ethics rule as a ruse to launder payments that were, in truth, in exchange for political favors, not client referrals. The complaint’s five counts charge that Silver did political favors to two real estate developers and a doctor, that in exchange for the favors the developers hired one law firm and the doctor steered patients to another law firm and that Silver got a cut of the fees that each firm earned from these clients. Of course, political favors are not crimes. They are what politicians do. But if they do them in exchange for money, it’s theft of the honest services they owe constituents and extortion, which are the crimes, along with conspiracy, leveled against Silver.