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Cutting Off the Stream: How United States v. Silver Affects "Stream of Benefits" or "Retainer" Bribery
Perhaps in this current time of crisis and unprecedented government response, it is as important now as at any time that citizens trust that government officials' decisions are made free of improper influence or self-dealing. Federal, state, and local decision-making will undoubtedly and significantly affect every aspect of our lives and work. While community vigilance beyond law enforcement efforts is required to maintain public integrity, federal prosecutors nevertheless have a "wide berth" to combat corruption by elected and appointed officials. United States v. Rosen, 716 F.3d 691, 694 (2d Cir. 2013).
A recent significant case that considered the boundaries of this mandate is the Second Circuit's decision in United States v. Silver, 948 F.3d 538 (2d Cir. 2020). Although the court stressed in that case that, by vacating certain of former New York State Assembly Speaker Sheldon Silver's counts of conviction, it was clarifying and not altering the "as opportunities arise" theory under which bribery prosecutions are often pursued, Silver nevertheless emphasized that this theory requires particularity with respect to the "question or matter" that is the subject of the bribe payor and recipient's corrupt agreement; a particularity that many observers — and indeed prosecutors — may not have appreciated was necessary.
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