NEW YORK CITY — It's one thing for prosecutors to catch a sitting politician committing a corrupt act and then turn him into an informant trolling the halls of government for other corrupt officials.
It's quite another for prosecutors to bust a tarnished politician before he takes office, then stand by as he is elected to the New York Assembly, effectively concealing the history of a known criminal as he worked for years as their mole, experts said.
The seemingly unprecedented move in the case of disgraced Bronx Assemblyman Nelson Castro — the details of which are expected to be partially revealed when his indictment is unsealed Wednesday afternoon — is fraught with ethical problems, according to the experts.
Not least among the ethical issues is if federal prosecutors had a hand in Castro's legislative duties, and whether the move misled voters by allowing Castro's criminal history to remain hidden, the experts said.
Castro was caught lying about his role in illegally registering voters to help him get elected to the Assembly in 2008 from the West Bronx, prosecutors said.
But instead of prosecuting Castro and preventing another dubious pol from taking office, prosecutors saw Castro’s woes as a rare opportunity to use a sitting politician as an undercover operative.
They offered Castro a deal he could not refuse — to avoid punishment by wearing a wire — and allowed him to run, and get reelected twice after that, in 2010 and 2012 without disclosing the deal to the public.
The problem is, Castro was permitted to introduce legislation, vote on law and perform other public duties as though he were an honest lawmaker enjoying the trappings of his position, experts said.
A former top Justice Department official brusquely defended the move to use Castro, declaring that “everyone knows the New York State Legislature is a f---king sewer, and it takes a scumbag to catch a lot more.”
"Castro's constituents were probably better served that he was on the straight and narrow rather than left to his own devices," a law enforcement official added.
But others saw the issue as being more complex.
"It is a slippery slope allowing someone who should have lost his seat to stay there and whether the ends justify the means,” one law enforcement expert said.
Another expert said the move “raises all kinds of ethical and legal concerns.” “Letting someone take office illegally and pass laws or starting legislation is very problematic,” the expert added.
Federal guidelines about the use of confidential informants as well as government witnesses contain a special category for politicians, authorities say.
“The government is clearly concerned about the political process being invaded by law enforcement and are careful about the constitutional process,” a guidelines expert explained.
The Justice Department guidelines say that those dealing with elected officials have to pay special attention to their position and whether it is wise to proceed.
Sources say that Manhattan U.S. Attorney Preet Bharara’s office, which worked with Castro on the case, enjoys wide latitude in making decisions, unlike prosecutors in offices across the country.
Bharara’s spokeswoman declined to discuss any aspects of Castro’s cooperation beyond details disclosed last week when he resigned following Stevenson's arrest.
It was not immediately clear if Bharara's office got the green light from Washington D.C. to use Castro as a mole, sources said.
In addition, the disgraced pol’s secret recordings of Stevenson raise questions about whether Castro and a cooperating witness took too active a role in pressuring other elected officials to stoop to bribery, experts said.
On the tapes, Stevenson is heard twice saying he did not want any money to help several Bronx businessmen with their adult daycare center.
The criminal complaint says that Stevenson initially rebuffed offers from the witness that he would be “blessed with a payment of $10,000” if he helped.
“[Stevenson] said he did not need the money and would do it for the ‘community,’” the complaint says.
Months later, however, Stevenson allegedly accepted the loot outside a Riverdale steakhouse.
Stevenson’s lawyer, Murray Richman, questioned whether “Castro was an agent provocateur, repeatedly pressuring people to create a criminal when there was none.”
It is a question to be decided by the courts. One federal official said it likely makes no difference if he took the bait on the first opportunity, or the last. “It is still a crime,” he flatly declared.
People who know Castro say he carried out his public life as though he hadn't a care in the world, traveling every week to the capital, hanging out with other lawmakers and tackling legislative issues.
"I would hope that his behavior was closely monitored because it is impossible not to wonder whether his votes were his own, or those of his government handlers," a former justice department official said.
"And that means the process was likely affected."