People
How U.S. Attorney Preet Singh Bharara Struck Fear In Corporate Criminals
Part III
JEFFREY TOOBIN
PART III
Continued from yesterday …
The complaint against Sheldon Silver, Speaker of the New York State Assembly, ran to thirty-five single-spaced pages, and vividly detailed the his plot to use his office for personal financial gain.
On May 28, 2015, Bharara indicted Silver’s counterpart in the State Senate, Majority Leader Dean Skelos, and his son Adam. In this instance, the complaint told an even more dramatic story, requiring forty-three pages.
Adam, who was in his early thirties and sporadically employed, had bought a house that he could not afford, for six hundred and seventy-five thousand dollars. His father used his power in the state, and, especially, in his political base, on Long Island, to pressure government contractors to hire his son - who rarely showed up for work.
Using quotations from wiretapped conversations, the complaint detailed how the father and son worried about Bharara’s investigation of them even as Senator Skelos continued to try to steer jobs and cash to Adam. On March 28, 2015, Adam Skelos complained that his father was not giving him any “real advice” about dealing with a business contact:
“You can’t talk normally because it’s like fucking Preet Bharara is listening to every fucking phone call. It’s just fucking frustrating.” Dean replied, “It is.”
Bharara did not invent speaking complaints, but his prolific use of them has become the subject of debate.
“These complaints are unnerving and disturbing and fundamentally unfair,” Henry Mazurek, a prominent defense attorney, told me. “Preet has recruited strong people, and the office is incredibly effective, but, on the flip side, I’m concerned that he has created an office that has been more politically motivated than it has been under previous regimes. When defendants are accused in such detail, there are huge reputational and professional repercussions for them. People think that they can’t fight the government at that point.”
Mazurek notes that speaking complaints continue to help the prosecution even in those rare cases (like those against Silver and Skelos) when the defendants choose to go to trial.
“The complaints tell a story and set a tone, especially in the press, that’s very hard to counteract,” he said.
Judge Rakoff told me, “It’s inevitable that the media is more interested in the complaint and the indictment than in the sentence. It’s old news at that point. The media tends to be much more focussed when the original charge is brought. The only time you really hear both sides is when the case goes to trial, and there are very few trials these days.”
“Sometimes it’s hard for the public to understand why something is a crime,” Richard Zabel, Bharara’s former deputy, said. “Silver and Skelos were complicated and opaque crimes, and we wanted them to be laid out pretty clearly. The complaint offered the opportunity to explain it to the public.”
He added, “Also, when you want coöperators, and you lay out all that proof, it can be pretty intimidating and cause people to coöperate. Public disclosure, in the form of complaints, can be a force for deterrence, too.”
Bharara’s outspokenness generated a backlash, notably from some judges in the Southern District. Silver’s lawyers filed a motion to dismiss the case, based on what they asserted was Bharara’s violation of the rules governing public statements by prosecutors prior to trial. Judge Valerie Caproni took Bharara to task.
“In this case, the U.S. Attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that Defendant Sheldon Silver has a non-frivolous argument that he fell over the edge to the Defendant’s prejudice.”
In the end, Caproni didn’t throw out the case, but her rebuke to Bharara for showboating was both rare and stern.
Bharara argues that publicizing criminal behavior is a public duty, for the purpose of deterrence.
“It’s not my job to put out a ten-point program to fix corruption in New York State,” Bharara told me. “Prosecutors alone are not going to solve the problems. But we do want the problems to be solved. I can say that when you have an overabundance of outside income for legislators, when you have an overconcentration of power in the hands of a few people, and when you have a lack of transparency about how decisions are made and who makes them - that it is our job to point that out. We can give these issues a sense of urgency. A lot of people wake up to the possibility of better government when you start putting people in prison.”
Bharara was pleased that Silver and Skelos, unlike most defendants, chose to go to trial.
“Trials are good, because only at a trial does everyone see all the muck that maybe the investigators and prosecutors saw,” he told me. “You might not have believed as fully in the guilt of that person even if he had pleaded guilty to something small.”
The two trials unfolded in Shakespearean fashion, one a history, the other a comedy. The Silver trial revealed a despotic figure, more feared than loved by his subjects. The Skelos case revealed a beleaguered father’s desperate and bumbling attempts to prop up his ne’er-do-well son.
The prosecutors in the Silver case made an unusual choice for their first witness. They called Amy Paulin, a member of the Assembly from Westchester, who was first elected in 2000. She knew nothing about Silver’s personal business arrangements, but she introduced the jury to the workings of the state government. She explained the basic structure of the Assembly and outlined the way Silver supervised both the process and the substance of legislation, especially the budget. Paulin said that Silver controlled all spending in each member’s district, all capital spending in the state, and also “lulus,” which are salary supplements for Assembly members’ service on committees.
“During the tenure of Sheldon Silver as Speaker, who decided which members of the Assembly got lulus?” Howard Master, a prosecutor, asked Paulin.
“After you reached a certain level of seniority,” she replied, “the Speaker would appoint you to be a committee chair or to one of the responsibilities that receives a lulu.”
“But ultimately who had to make that appointment?”
“The Speaker.”
Steven Molo, Silver’s lead lawyer, pointed out on cross-examination that Paulin had repeatedly voted to retain Silver as the Assembly Speaker.
Master followed up on redirect. “You were asked how many times you voted for him?” Master asked.
“Yes,” Paulin replied.
“And so, with respect to the vote that actually mattered within the Democratic majority, how much opposition did Sheldon Silver have during each of the times?”
“During my time there, I think one or two people didn’t end up voting for him,” Paulin said, adding that Silver had no “real opposition.”
Master asked Paulin about the last time any Assembly member challenged Silver for the job of Speaker.
“It was right before I got there. It was in 1999 or 2000. It was Marty Bragman, an Assembly member from upstate New York, and he didn’t win. He tried to take over as Speaker, and he was ostracized, really, until he left.”
Paulin testified that she sat next to Bragman when she was first elected to the Assembly. “It was one of the back rows, and right next to me was Marty Bragman. When I first got elected until he left, he used to say, ‘You know, don’t talk to me, because that’s not good for you.’ ”
Silver was brazen in the exercise of his power. He instructed Dr. Taub, the mesothelioma researcher, not to disclose that he was referring patients to Silver’s law firm. To keep the referrals coming, Silver did more than just send half a million dollars in state money to Taub’s clinic. He found a state job for Taub’s daughter; he sent a state grant to Taub’s wife’s charity; he arranged for an official state proclamation lauding Taub’s work.
Silver’s efforts on behalf of the developers were just as important, if necessarily less public. Silver represented the Lower East Side of Manhattan, where many low-income families live in rental apartments. Silver, who styled himself a defender of tenants’ rights, did not reveal on his disclosure form that he was receiving payments from two developers. At a lunch with the developer Steve Witkoff, Silver asked him to move his lobbying business to the law firm of Goldberg & Iryami, without telling Witkoff that he would keep a piece of that action for himself.
In the other trial, Adam Skelos emerged as a pitiable figure. His lawyer, Christopher Conniff, put it this way in his opening statement: “Like most of us, he has had his ups and downs through the years, and his dad has been right by his side through them all.”
Conniff acknowledged that Adam “is by no means perfect.” Adam’s real trouble started when he bought his house without any means to pay for it. His father gave him fifty thousand dollars and promised him a hundred and twenty-five thousand more. But, instead of giving Adam the cash, Senator Skelos found him a series of jobs.
The first witness, Christopher Curcio, was Adam’s supervisor at a firm called PRI, which sold medical malpractice insurance. “How would you describe his attendance at work?” he was asked.
“It was very spotty,” Curcio said.
“What do you mean by spotty?”
“Some days he was there. Some days he wasn’t.”
The dramatic high point of the trial came when former Senator Alfonse D’Amato, now an éminence grise of Long Island politics, took the stand. After losing his Senate seat, in 1998, D’Amato started a lobbying firm, which represented the malpractice insurer PRI. At one point, D’Amato testified, a colleague told him that “PRI had hired Adam Skelos and that there was difficulty in that Adam was not showing up to work and when he was at work was disruptive.”
So D’Amato paid a call on Senator Skelos, an old friend, and told him that Adam had to start doing his job. According to D’Amato, Skelos “told me that Adam really needed the job; that his wife, I believe, was expecting; that he needed the medical insurance as well as the job - that was very important and significant.” But Skelos didn’t promise that Adam would start working harder.
Adam himself later went to see D’Amato, hoping to be hired at his lobbying firm. D’Amato refused.
The government called Anthony Avella, Jr., a state senator from Queens, to serve roughly the same purpose that Paulin did in the Silver case - to explain to the jurors how the state legislature worked. Jason Masimore, a prosecutor, established through Avella that the senators had no idea that the Skelos family had a financial interest in legislation.
“Senator Avella, prior to the passage of the 2015 budget legislation, what, if anything, did you learn concerning whether the Senate Majority Leader and his son had agreed to try to direct storm-water-related funds to benefit a company paying Adam Skelos ten thousand dollars per month?” Masimore asked.
Avella said that he knew nothing about the arrangement.
“Would that have mattered to you as a state senator?”
“It would have mattered greatly,” Avella replied.
“Why is that?”
“It has the appearance of impropriety,” Avella said. “And I think it totally inappropriate that the Majority Leader and the son are benefitting personally from a budget bill.”
In cross-examination, Adam’s lawyer stressed that the case was all about the love of a father for a son. He asked Senator Avella if he had once been a child with a father.
Masimore’s redirect was brief and devastating. “How, if at all, is the oath of office different for senators who have family members from senators who don’t have families?”
“It’s the same,” Avella said.
Rahul Mukhi, another prosecutor, pursued the same theme in his summation:
“You cannot commit a crime and then just say I’m not guilty because I did it to help my son. A bank robber can go into a bank, take the money, give it to his son, and say: I didn’t commit a crime because I gave the money to my son. For the same reasons, a senator cannot use his public powers to get private payments for his son and then say it’s not a crime because as parents we all love our kids.”
After brief deliberations in both cases, the defendants were found guilty on every count. [Sheldon Silver was sentenced to 12 years in prison. Dean Skelos and his son are yet to sentenced; the prosecution has asked for at least “approaching” 12 1⁄2 to 15 1⁄2 years for him, 10 to 13 years for his son, Adam.]
On January 11th, Bharara issued a statement saying that his office would not indict Governor Cuomo, or anyone else, in connection with the closing of the Moreland Commission. “After a thorough investigation of interference with the operation of the Moreland Commission and its premature closing, this office has concluded that, absent any additional proof that may develop, there is insufficient evidence to prove a federal crime,” Bharara said.
When I asked Bharara why he felt compelled to give Cuomo a clean bill of health, he replied, in an uncharacteristically icy tone, “Nobody gave a clean bill of health to anybody. A non-indictment is not an endorsement of anyone’s conduct.”
Rather, Bharara said, in certain rare circumstances, when an investigation had received a lot of publicity, it seemed fair to announce that no charges would be brought. (Through a spokesman, Cuomo declined to comment on Bharara.)
Bharara’s office recently started an investigation of corruption in New York City. The case involves possibly unlawful campaign contributions solicited by Mayor Bill de Blasio on behalf of candidates for public office. But, clearly, Bharara considers his anti-corruption campaign in Albany unfinished.
Earlier this year, he took a daylong victory tour through the state capital, giving talks about the need to fight the corruption exposed in the Silver and Skelos trials. He started with a speech about political corruption to the New York Conference of Mayors, followed by a visit to the Court of Appeals, the highest court in New York, for the swearing in of Janet DiFiore as the state’s new Chief Judge. DiFiore had been the district attorney of Westchester, which is within the Southern District, so she had been a colleague of Bharara’s.
Governor Cuomo also attended the ceremony, but afterward he and Bharara went their separate ways, without shaking hands or even making eye contact.
Toward the end of the day in Albany, Bharara went to an auditorium at WAMC, the local NPR affiliate, for a town-hall-style meeting before an invited audience of good-government activists. “I love New York with all my heart,” he told them. “What has been going on in New York State government is heartbreaking, infuriating, and almost comic.” At least, he pointed out, “there are tough cops on the beat.”
Bharara was in a cheerful mood, possibly because he was going to a Springsteen concert later that evening. When audience members asked him if he would run for office, perhaps against Cuomo, in 2018, he grinned and answered, “I was not born to run.”
It seems likely, however, that he would welcome an offer to be the U.S. Attorney General in a Democratic Administration. Such an appointment would make him the boss of James Comey, now the F.B.I. director, for whom Bharara worked when he was an A.U.S.A.
In an e-mail, Comey said that Preet Singh Bharara “has somehow managed to be incredibly smart, principled, independent, and hilarious, all at the same time.” ♦
CONCLUDED
Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.
[Courtesy: The New Yorker. Edited for sikhchic.com]
May 5, 2016