Former Assembly Speaker Sheldon Silver pleaded not guilty to charges of extortion, mail and wire fraud today—and his attorneys asked the judge to toss out the indictment against him.
In a lengthy motion to dismiss, Mr. Silver’s attorneys argued U.S. Attorney Preet Bharara had created a media firestorm that sought to try the lawmaker in the press—for doing something Mr. Silver’s team argued isn’t even a crime.
“Of course, there is nothing wrong with a New York state legislator earning outside income from other professional pursuits: Part-time public service has long been the norm in this State,” his defense team wrote. “Nor is there anything improper about an attorney earning referral fees for bringing in business to a law firm: ‘Rainmaking’ is not a federal crime.”
Mr. Bharara has alleged that what Mr. Silver presented as legitimate outside income from law firms was actually millions of dollars of kickbacks and bribes gained through his official position in Albany. The lawmaker is accused of using his influence to “induce real estate developers with business before the State” to use a real estate law firm run by his former counsel in the Assembly, which paid Mr. Silver for the referrals. He is also accused of trading research funds for asbestos patient referrals for another law firm.
A grand jury last week returned an indictment on three counts—one each of wire fraud, mail fraud and extortion. But Mr. Silver’s attorneys argued that the lawmaker never had a fair chance after Mr. Bharara created a “media frenzy” that began even before his arrest, let alone before a grand jury was impaneled.
“In an effort that could only serve to prejudice the jury pool, the U.S. Attorney has prosecuted this case full bore through the press,” his lawyers argued in their motion to dismiss.
Mr. Silver’s defense team argued that Mr. Bharara had “flagrant violated” publicity rules, which they argued prohibit him from making statements that may influence the outcome of the trial and limit him to discussing just the facts. The motion points to news reports outlining Mr. Bharara’s rhetoric, including his infamous “stay tuned,” citing among others the Observer headline “A Swaggering Preet Bharara Charges Sheldon Silver With Public Corruption.” It also cited his comments after the arrest, including his resounding criticism the next day of Albany’s “three men in a room” governance.
“Those are the sorts of impassioned exhortations suited to a Zuccotti Park soapbox, not a prosecutor’s press conference,” the lawyers wrote.
They argued those violations warranted dismissal of the indictment, saying they had compromised the fairness of the grand jury. If the indictment isn’t tossed, they argued, at the grand jury should be polled to determined if there had been “improper influence.” The defense also called for the disclosure of the grand jury’s minutes in the case.
You can read the entire motion to dismiss below:
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