Kudos to one of my favorite judges, Jose Cabranes of the Second Circuit, for his decision and opinion vacating all counts of the criminal conviction of Sheldon Silver, the former speaker of the New York Assembly.
Judge Cabranes, writing for a panel that also included Judge Richard C. Wesley and Judge William K. Sessions III, wrote, "though we conclude that the jury instructions at Silver's trial were erroneous, we do not ascribe fault to the District Court or to the government."
I can understand why Judge Cabranes may not want to ascribe fault to the prosecutors. Part of the issue in the case was a Supreme Court decision, McDonnell v. United States, clarifying the definition of honest-services fraud of the sort of which Silver was accused. The McDonnell opinion came out after the Silver case was tried, so it might seem unfair to blame the prosecutor, or the judge who approved the jury instructions in Silver's case, for failing to anticipate it.
Okay. But journalists, or voters, need not be as cautious, or judicious, as Judge Cabranes in ascribing fault. The federal prosecutor who brought the charges against Silver, Preet Bharara, also had a string of other convictions, on insider trading cases, reversed or dismissed by the Second Circuit, which ruled that they had been brought under a "novel" legal theory. Now it starts to look like a pattern. In both the insider trading cases and the case against Silver, Bharara went after "crimes" that weren't actually crimes under the law as it was written by Congress and defined by judges.
Both the initial insider trading charges and convictions and the political charges and convictions were accompanied by lots of great publicity for Bharara, who was on the cover of Time magazine and attended Vanity Fair's Oscar party. They were cheered on by the press and conservative think tanks — the former editor of the New York Post's editorial page, Bob McManus, wrote in the Manhattan Institute's City Journal that "His work during seven years as one of America's top federal prosecutors was exemplary." An earlier piece had been headlined "Memo to Trump: Let Preet Stay."
If Bharara's behavior is "exemplary," it may not be quite in the way that McManus intended it, but rather as an example of what can happen when a prosecutor lets himself get out ahead of the letter of the law. It's a problem regardless of whether the target is a hedge fund manager or a Democratic politician. Even unpopular targets deserve the protection of the rule of law. In the Second Circuit, they get it, thanks in large part to judges like Barrington Parker, who wrote the Newman decision, and like the Great Cabranes, who ruled in the Silver case.