Remarks as Prepared for Global Cities III Conference
Thank you for your warm introduction, Liz. And thank you all for attending this event bright and early on a summer Friday.
It’s truly an honor to speak at today’s Global Cities III, a conference which is a testament to the continuing vision and leadership of Mayor Bloomberg. In addition to doing great work here in New York, Global Cities is providing a critical service in countries with more fragile institutions, encouraging collaboration, transparency, and a universal awareness of best practices that will inspire improved municipal governance for decades to come in the places that need it most. Mike Bloomberg and his team, of which Rose is a crucial member, are doing something − achieving something −to which we all aspire: they’re making a difference, and making the world a better place.
I also want to express my gratitude to the Center for the Advancement of Public Integrity, and in particular Rose Gill Hearn and Berit Berger, for inviting me to speak today. CAPI is an indispensable resource for prosecutors fighting public corruption, and I can think of no one in our city more dedicated – or successful – in this particular fight than Rose was during her distinguished time as Department of Investigation commissioner.
In a few minutes, I will speak about how CAPI’s review and report on contributions to my campaign impacted my thoughts and actions relating to campaign donations – a subject that cuts to the heart of public confidence in prosecutorial independence.
But first I’d like to zoom out and address public corruption generally in New York State – and changes that are needed in state law to empower local prosecutors to hold elected leaders accountable for criminal acts.
Spoiler alert: New York State is not the gold standard for prosecuting public corruption. We should be. And I’d submit that it won’t be that national model until we address serious challenges.
That’s not to suggest that all lawmakers in Albany have turned a blind eye to corruption while a steady parade of their colleagues were indicted, convicted, and ultimately sentenced over the past decade.
In recent years, State legislators committed to good government have proposed bills designed to reign in Albany’s culture of corruption. Gov. Andrew Cuomo’s Public Trust Act in 2014, notably, resulted in penal law amendments to existing bribery statutes and a new corruption law (P.L. 496).
Any positive gain on this issue is hard won and, to be sure, deserves credit. Yet, those bills passed as an obvious compromise for killing further efforts of the Moreland Commission to conduct deep investigations and recommend systemic reform, which I will address shortly. So, it has become undeniably clear to me over the past five years that we cannot make suitable progress on this issue by nibbling around the edges.
Today, we’re gathered less than two days after the end of another New York State legislation session. I can’t help feeling that we just missed another opportunity to pass impactful public corruption legislation. And with it, so did the potential, for the time being, of remaking New York into a national leader in good governance and restoring some of New Yorkers’ lost faith in public integrity statewide.
The significance of this missed opportunity – session after legislative session – cannot be overstated.
Everything else we do as a City and a State – every new thing that we try to build, every pioneering experiment that we undertake – depends on that foundation of honest government, and just as importantly, on the perception of honesty in government.
In 2018, former Senate Majority Leader Dean Skelos and ex-Assembly Speaker Sheldon Silver were re-tried and convicted for crimes they committed while in office. Skelos and Silver might now be sentenced as federal defendants, but I don’t believe the public is confident the culture that enabled their corruption in Albany has been eliminated. In fact, to the contrary.
There are two reasons, broadly speaking, why that’s the case:
- Reason number one is structural defects in our government.
- Reason number two is a lack of cops on the beat.
Reason number one – structural defects. In New York, we are fortunate to have a passionate, brilliant, and deeply engaged good government community – which is well-represented at today’s conference. When it comes to articulating and solving structural problems in our government, from campaign finance reform to the consequences of having a part-time legislature, I tend to let those good government experts take the lead.
But honestly, there are some fixes that seem so commonsensical. To me the first has to be to eliminate outside income for legislators and pay them a wage sufficient to do one job, and to do it well, without having to navigate a minefield of conflicts that come from doing multiple jobs at the same time.
If Shelly Silver had not been in a position to accept large referral fees, which he obtained for doing little or no legal work, perhaps the former Speaker of the Assembly for 21 years, would not be a convicted felon. The same applies to former Majority Leader of the State Senate Dean Skelos and his law practice.
Granted, the idea of a full-time legislature doesn’t have universal support. Some even have commented to me that there actually isn’t enough work for assembly members and senators to do to justify full-time pay. I disagree; the many elected state representatives I know and admire work hard and long hours for their constituents.
But I think the more sensible commentators understand we live in a complex world where it’s hard for legislators to avoid conflicts when they are paid for independent work by constituents. And for others, the lax rules are an invitation to abuse their positions of trust. Part-time legislators may have worked well in bygone times where life was simpler. Those days are long gone.
Where I can best leverage my own experience and expertise –– is on reason number two for high-level corruption: the lack of state-level enforcement.
In my experience, the lack of state level enforcement is this does not result from a lack of potential enforcers.
I am one of 62 District Attorneys in New York State who could be cops on this beat. What’s preventing us then? In many instances, woefully inadequate state statutes.
New York State criminal procedure laws, as they exist in 2019, do not help district attorneys root out corruption; they prevent us from doing so.
As a result, compared to our federal counterparts, District Attorneys are fighting high-level corruption with one hand tied behind our backs.
State prosecutors in New York historically handled corruption investigations, and been very effective in doing so. Over the last several decades, however, state laws – both substantive and procedural –have not evolved at the pace of federal laws.
This present situation is not for lack of effort – or concern – on the part of state prosecutors.
When I became Manhattan District Attorney in 2010, I worked with the District Attorneys Association of the State of New York and lawmakers in both legislative branches to promote a bill that would strengthen disclosure requirements, fix the definition of bribery and attempted bribery, and harden the prohibition on the use of taxpayer-paid services for private work.
That particular year, three former members of the state Legislature and the former State Comptroller Alan Hevesi were charged with crimes related to corruption. The shocking prevalence of such high-profile wrongdoing highlighted that the state sorely needed serious upgrades of its outdated corruption and procedural laws.
What I and many others believed were commonsense, necessary solutions to stamping out the corruption that paved the road for so many state politicians to exchange the State capitol for a jail cell did not register as an urgent matter with the State legislature.
Two years later, while serving as president of the District Attorneys Association, I created the White Collar Crime Task Force to examine these problems in detail, from top to bottom. This task force, comprised of prosecutors, defense lawyers, academics and former members of the judiciary, sought to generate policy recommendations, grounded in good government, that legislators from across the state could potentially embrace.
Among other recommendations in our 113-page report, we proposed, for the first time in recent history, a package of comprehensive, wide-ranging, highly-detailed anticorruption legislation. These rather sweeping proposals garnered the unanimous support of all 62 District Attorneys statewide. That, in itself, was a testament to the value of the task force’s recommendations.
In 2013, I presented our recommendations to the Moreland Commission to Investigate Public Corruption. Do you remember the Moreland Commission, the great effort to wipe out public corruption by bringing together the brightest minds to address the problem of corruption in Albany? Few do. And those who do remember do so not because it existed, but because it was prematurely disbanded after doing absolutely nothing. A great opportunity existed there, but as soon as it started to do its job, it was shut down.
We had hoped that the state legislature would address the task force’s recommendations and swiftly pass this anti-corruption legislation in 2014. Despite our best efforts – year after year, federal indictment after federal indictment – the legislature has failed to act in a sufficient manner, even as evidence of corruption has manifested in conviction after conviction.
More casual observers than the ones in this audience might say to me, “so what? The feds have things under control.” And it’s a fair question.
The F.B.I. and the U.S. Attorneys for the Southern, Eastern, and Northern Districts of New York have demonstrated a remarkable acumen for policing corrupt state officials – often applying federal laws like extortion, mail fraud, and wire fraud.
I, for one, am hugely appreciative of the excellent work that they do. I think our federal prosecutors in New York have been courageous in taking on those difficult cases.
That said, our state’s reliance on federal authorities to safeguard the integrity of state and local government is – inherently – risky public policy. And is inherently in tension with a federal system of sovereign states.
Why, in a nation that grants states primacy in police power, would New York cede this authority to a federal government of limited powers?
Why would we do this, when we know that over time, federal priorities will change? Do we need any more evidence to prove this point than the change in federal law enforcement priorities in the last two years?
Why would we still do this when we also know that federal law itself has drastically changed, making it tougher for our federal partners to prosecute public bribery following the Supreme Court’s unanimous opinion in McDonnell v. United States?
If you ponder these questions long enough, you’re doubtful to arrive at satisfactory answers. You will end up with a headache though.
For New York State to stand as a true national leader in good governance – as the best place to build a business or a family, as a place where we innovate on behalf of our citizens without the undue influence of special interests – I believe it is imperative to make many of the changes outlined in our White Collar Crime Task Force Report. They were sensible in 2013, and six years later, they remain so today.
Now, as we all know, some high-level government officials (and many low-level ones) do, on occasion, wind up in our state courts. In the early 2000s, the Manhattan DA’s Office obtained the convictions of Assembly member Gloria Davis and Senator Guy Velella, and more recently, of a City Council candidate who falsified matching funds paperwork.
These successes, a fraction of those of our federal counterparts, came about in spite of the state system, not because of it. Criminal prosecution is not the answer to all of society’s problems, but any system of corruption enforcement is doomed without effective ways to investigate and prosecute it.
So, what are some of our recommendations?
I will highlight two procedural law reforms that I believe are necessary to remove fundamental roadblocks to building white collar cases:
- Ending automatic transactional immunity; and
- Amending the accomplice corroboration requirement;
New York is the lone state to employ the utterly nonsensical automatic transactional immunity requirement that every witness before a New York grand jury automatically receives full immunity for anything they testify about, and anything related to it.
This special protection, which could be redefined as an “immunity bath,” makes prosecutors reluctant to call before the grand jury the very people who know about corruption, for fear of giving them a lifetime pass for their transgressions.
In one notable example, a business executive was questioned before a grand jury in Suffolk County about his company’s possible victimization in an extortion scheme. Years later, a grand jury, working with a different prosecutor, indicted him for sales tax evasion. Because the executive’s first grand jury testimony included discussion of his company’s financial status, the court ruled that he could not be prosecuted in the tax case.
I believe the grand jury’s promise as a tool to investigate white collar crime, political corruption and street crime is unfulfilled due to the requirement that all witnesses automatically receive transactional immunity from prosecution for any crime they mention while testifying.
In corruption and white collar cases in particular, the testimony of involved persons or potential accomplices is critical to develop evidence of more serious charges against others. But, it is those very witnesses −for example, the chief of staff of an elected official − who often have the most knowledge about a crime, but whom prosecutors are least likely to call before a modern New York grand jury because they are automatically immunized by testifying.
In other words, New York’s antiquated and completely unique grand jury rules present us with a classic Hobson’s choice: forego critical testimony for fear of unwittingly immunizing a serious criminal, or rely on the testimony of a witness who has been given a free pass because of transactional immunity and thereby weaken the prosecution’s case at trial, or worse, unwittingly immunize a serious criminal.
On its face, New York’s accomplice corroboration requirement is not as legally perplexing as automatic transactional immunity, but it is no small source of frustration for prosecutors.
It makes sense to require evidence to corroborate an accomplice’s testimony. However, state courts have restricted the kind of evidence that may serve as corroboration under criminal procedure law, and repeatedly held that the testimony of a different accomplice is insufficient to corroborate the first accomplice. After all, these are the people with intimate knowledge about crimes committed.
New York is among a minority of states that require this level of corroboration, and this anomaly has resulted, for decades, in hamstrung prosecutors dropping strong cases because they could not be made in state court. The law should be amended to allow one accomplice witness to corroborate the testimony of another. With proper safeguards, such as an instruction from the trial court on the inherent risks of accomplice testimony, accomplice witness reliability ought to be a factor for the jury to decide in assessing credibility.
Again, these are just two of the recommendations we highlighted for lawmakers serious about ending New York’s decades-long history of high-level corruption.
District Attorneys must be equipped with the tools to fight corruption in their jurisdictions. It is illogical and untenable to rely solely on the feds. And in today’s post-McDonnell era, it’s borderline dangerous.
I will devote my remaining time this morning to the topic of campaign finance reform, which I’ve come to learn is actually a critical aspect of criminal justice reform.
When you are a public servant, even receiving perfectly legal – and ethical – campaign contributions can prompt regrettable aspersions about your decision-making and independence.
I learned this the hard way in October 2017, when campaign contributions I received from lawyers who had cases before the DA’s Office prompted a media firestorm about my charging decisions of high-profile people accused of criminal behavior.
In my time as Manhattan District Attorney, I’ve never allowed someone’s wealth, power, race, or campaign contributions to influence my decisions, and I’ve been a strong advocate for anti-corruption laws. But, even my personal values and public record didn’t insulate me from the pitfalls I experienced from failing to grapple with the optics of campaign contributions.
What I learned, above all, is it’s not enough for me to have confidence in my independence from donors. The people of New York deserve to be confident about this as well.
This is why I requested the Center for the Advancement of Public Integrity begin a prompt, rigorous independent review –the first of its kind – assessing how my campaign handled contributions, and opportunities for reform moving forward. I wanted measures that could be implemented immediately and voluntarily, without requiring changes to the law, that would radically reduce the appearance of influence of money in our work.
A well-functioning justice system depends on actors within it faithfully executing their duties. It also depends on public confidence – shared by people of all races and socio-economic classes – that those actors are making judgments based on the merits alone.
Raising the Bar, CAPI’s detailed independent report, helped me identify ways to reduce conflicts of interest and increase transparency in fundraising efforts. But perhaps more importantly, it illuminated what I think from personal experience, are best practices for all 62 District Attorneys in New York to consider. These recommendations included “blind” fundraising procedures and, in the case of incumbent prosecutors, limiting contributions from lawyers who represent clients in matters before the office.
I made a promise, upon the report’s January 2018 release, that my campaign would exceed these recommendations, and I have kept it.
I implemented the “blinding” procedure recommended in CAPI’s report, and announced we would no longer accept contributions – in any amount – from lawyers appearing before our Office. Contributions from their law partners are also capped, consistent with CAPI’s recommendation. In addition, I’ve continued to enforce a strict division between my campaign and the DA’s Office, as I have since Day one.
And finally, I’ve advocated for full public financing of District Attorney elections, in order to further reduce the influence or perceived influence of lawyer-contributors. I’m advocating for that even though it tends to elevate challengers against incumbents.
It’s my sincere wish for my District Attorney peers in New York that none of them would find themselves in a similar imbroglio to the one I encountered in 2017. However, there are no guarantees of this. After all, CAPI’s recommendations are purely voluntary.
Legislative action is the surest, most airtight way to achieve lasting, mandatory campaign finance reform, as the CAPI report’s conclusion notes. Albany did not move on this in the last session.
Even so, I urge the people in this room to continue to advocate for change. A better New York depends on it, and we are the people to make this happen.