federal indictment against Silver), there could be some subtle and worrisome themes best expressed in three questions:
First: Does the federal government have the right to approve business contracts? This leads to the question of whether the federal (or state) government be able to criminalize any contract of which it does not approve?
And second: Are prosecutors also regulators, that is, able to impose regulations outside the ambit of legislative authority (because prosecutors are part of the executive branch) through their creative use of criminal statutes?
And finally, third: Will business be subject to arbitrary, shifting and perhaps ill-informed standards of care, perhaps set and then measured for compliance by people not necessarily qualified to do either, and of which standards an alleged violation becomes a crime?
(Before I continue: This article explores some troubling nuances in the thought process behind the case, and in no respect is meant to excuse or defend any of the alleged conduct. I have no love lost for Mr. Silver, none at all, but nor do I bear him any animus. Full disclosure: I've beaten his political machine -- that's different from him and I impute nothing to him -- on some election law cases in the past, going up against someone from the big law firm Stroock, Stroock & Lavan. They even sought sanctions against me in a frivolous argument thankfully rejected out of hand. But I am not sold on the big picture here, which carries the subtle message that the government will use its prosecutorial power to regulate economic activity and businesses with which it simply disapproves or dislikes of an activity, industry or a particular person. None of that should be meant as a defense of Mr. Silver, particularly in some of the other criminal charges that involve none of the issues I discuss below, and which charges are both much more formidable and bolstered apparently with cooperating witnesses.)
Somewhat buried in the Silver criminal complaint are nuggets that very much indicate (and United States Attorney Preet Bharara said as much in his press conference) that the Department of Justice was questioning what Silver did to earn his referral fees from two law firms.
Here's the problem. The evaluation of what he did, whether he was qualified, etc. is an inherently subjective-value driven evaluation.
“It has long been understood that in disputes among attorneys over the enforcement of fee-sharing agreements the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either ‘refused to contribute more substantially.’
Sterling v Miller, 2 A.D.2d 900, aff’d 3 N.Y.2d 778 ). (Emphasis added.)