Skip to comments.Rod Blagojevich Is Asking for Mercy. His Case Is Stronger Than You Might Think.
Posted on 11/03/2017 7:28:34 PM PDT by nickcarraway
The Illinois governor seemed like the ultimate political crook. But some legal experts are not so sure anymore.
The day in March 2012 that Rod Blagojevich headed off to federal prison on corruption charges, it seemed to most of us in Illinois, and around the country, that justice had been done. An unsavory, self-absorbed politician all about money and powerthe very symbol of everything wrong with politicswas getting what he deserved for what seemed like textbook corruption.
But should we have been so certain?
Five and a half years into his 14-year sentence, after two trials and multiple appeals, the former Illinois governor is now down to his last legal avenue: a petition for a writ of certiorari, pleading for a review by the Supreme Court. His lawyers are planning to file the petition on November 2. The odds that the court will hear a case are, as always, long, and Blagojevich has already been denied once before. A denial this time around would in all likelihood close his nine-year legal saga. His only remaining hopea Hail Mary, at bestwould be for Donald Trump to issue a presidential pardon or clemency. If not, Blagojevich will have to serve out his sentence at a low-security prison camp outside Denver until he is eligible for release in 2024.
Blagojevich has maintainedadamantly, loudly and to little availthat he was wrongfully accused. To many people, his protestations of innocence, made anywhere and everywhere, and in the most cringe-worthy wayon the TV talk show circuitstretched the bounds of credulity. As David Letterman told Blagojevich when the governor appeared on The Late Show a few days after his 2009 impeachment: The more you talked and the more you repeated your innocence, the more I said to myself, Oh, this guy is guilty. By the time of Blagojevichs arrest, his job approval rating had sunk to 13 percent, and few people much cared what he had to say, anyway; they just wanted him to go away.
Blagojevich might come across as a laughingstock, to put it mildly, but his legal case, according to legal experts Ive spoken with, is no laughing matter. Their argument is not that Blagojevich is innocent, per se. Its that he got a raw deal in the courtsand that it could serve as a dangerous legal precedent. The expansive standard used to prosecute and convict him, they say, would make criminals out of virtually every politician in America for the unseemly, but routine, business of political deal-making.
People are always raising money for campaigns, and politicians are always voting on stuff, says Sam Heldman, who represented Don Siegelman, the former Alabama governor convicted in a federal corruption case similar to Blagojevichs. I think its literally true that if you gave me an FBI agent and subpoena power and gave me a random city council person or state legislator from any state in the country I could find something.
A number of recent Supreme Court decisions concerning political corruption, particularly under Chief Justice John Roberts, have given Blagojevichs legal team cause for hope. And Blagojevich himself remains convinced that he will ultimately prevail. I spoke with him recently for a separate article about his life in prison. Theres a lot at stake here that goes way beyond me, he maintained.
The heart of the case against Blagojevichwho can forget?came down to the bombshell charges that he had tried to sell the Senate seat being vacated by Barack Obama: an act so abhorrent that Patrick Fitzgerald, the U.S. attorney at the time, proclaimed it to be a political corruption crime spree that would have made Abraham Lincoln roll over in his grave. (You may recall Blagojevich caught on an FBI wiretap telling one of his advisers, That seat is a fucking valuable thingyou dont just give it away for nothing.) Blagojevich also faced sweeping racketeering and conspiracy counts for alleged shakedowns of a pediatric hospital executive, a racetrack owner, a road-building contractor and then-Representative Rahm Emanuel.
From Day One, Fitzgerald portrayed Blagojevich as slam-dunk guilty. And it was no great stretch to believe. His administration stank of corruption from the start of his first term. The governor himself was rumored for years to be under formal criminal investigation. In delivering the lengthy indictment, Fitzgerald portrayed Blagojevich more like the head of a vast organized crime ring than like a reckless politician caught breaking bad, dubbing the conspiracy the Blagojevich Enterprise.
But what did in Blagojevich, more than anything else, was himself: his own words, caught on FBI wiretap recordings, filled with profanity-laced tirades and suspect scheming. Illegal or not, the recorded conversations whipped the media and the disgusted public into a frenzy. You just knew his days as a free man were numbered.
The facts of the case arent really in dispute. Blagojevich has always admitted that he wanted something in exchange for appointing Obamas replacement in the Senate. Nor has he has ever denied that he tried to collect campaign donations from people who wanted some official act from him in return. The question is not whether Blagojevich sought the quid, which is not in itself illegal, but whether he attempted to, or did, deliver the quo, which is illegal if delivered on condition of the quid.
Two juries struggled to sift the smoke from the fire and answer this question. In Blagojevichs first trial, jurors deliberated for 14 daysan unusually long timeand wound up deadlocked on all but one of 24 counts against Blagojevich: that he lied to the FBI. District Judge James B. Zagel declared a mistrial on the 23 counts on which the jury could not reach a verdict. Eventually, Jury No. 2after deliberating 10 daysagreed about Blagojevichs guilt, convicting him of 17 of 20 corruption counts. In December 2011, just days from his 55th birthday, Blagojevich was sentenced to spend 14 years in prisonmore time than the combined sentences served by the three of his six predecessors who had gotten carted off to the Big House.
At the time, I was far from alone in thinking that Blagojevichs sentence was appropriately severe. But in July 2015, a three-judge panel of U.S. Court of Appeals for the Seventh Circuit threw out five of the 18 counts against him. All five of the vacated counts involved Blagojevichs attempts to sell Obamas old Senate seat for campaign money or a jobthe very same shenanigans that Fitzgerald decried as the most cynical and most appalling part of Blagojevichs political corruption crime spree. In its decision, the court said that, while the evidence against Blagojevich remained overwhelming, the district judges jury instructions in the second trial were in error; a properly instructed jury might not have convicted Blagojevich on these five counts, which, the court concluded, dealt with relatively commonand legalpolitical horse-trading.
The judges returned the case back to the lower court for resentencing. Zagel, however, was not persuaded by Blagojevichs arguments and refused to reduce his sentence, reinstating it in full. To me, the appellate courts dismissal of the counts changed the complexion of the case. It raised questions about not only the severity of Blagojevichs sentencedid his punishment still fit the crime?but also his original conviction. Was that as open and shut, either?
There was another reason to question the case. During Blagojevichs lengthy legal ordealand since his imprisonmentthe Supreme Court has redrawn the line between illegal bribery and the ordinary business of politics. In a series of cases decided between 2010 and 2016most notably the landmark unanimous ruling last June that overturned the 2014 political corruption conviction of ex-Virginia Governor Bob McDonnellthe court said that the existing federal anti-corruption laws were too broad, and in turn narrowed the legal definition of corruption, making it much harder for the government to win such convictions, let alone serve indictments like the one against Blagojevich in the first place.
The ripple effect of the Supreme Courts recent rulings has already affected other pending political corruption cases, including, most recently, that of former New York State Assembly Speaker Sheldon Silver. In July, a three-judge panel of the United States Court of Appeals for the 2nd Circuit in Manhattan, overturned Silvers 2015 corruption conviction, saying the district judges jury instructions were in error, in light of the McDonnell decision.
Could Blagojevich be next?
Blagojevich is hoping the Supreme Court will vindicate him. But for his certiorari petition, his attorneys wont actually be asking the court to revisit arguments about his guilt or innocence. Rather, theyll be aiming to persuade the justices to take the case in order to address broader legal issues raised in Blagojevichs trials and left unresolved in the McDonnell rulingfirst among them, the murky question of when a political contribution becomes a bribe.
The implications are big, says Heldman. It really does get at the basic question of what kind of government do we want. What is the standard of proof for the connection between the thing given to the politician and the action the politician takes? That needs to be nailed down.
Under federal law, it is a crime for public officials to solicit or accept money, including campaign contributions, with the intent of being influenced in their official actions. At the same time, there is deep disagreement among the federal circuit courts about the correct legal standard for determining where to draw the line between illegal and innocuous behavior. The split stems, to a large degree, from uncertainty about contradictory Supreme Court precedents, more than 25 years old.
In 1991, the Supreme Court decided McCormick v. United States, a case concerning a West Virginia state lawmaker convicted for soliciting campaign contributions from doctors lobbying him to back a bill they wanted passed. The court ruled 63 that in order to convict a lawmaker, a jury must find there was an explicit promise or undertaking by the official to perform or not perform an official act. In other words, the government must prove an expressly communicated quid pro quo. Only a year later, however, the court appeared to do a full 180. In another 63 decision, Evans v. United Statesthis time concerning an elected county official in Georgia who took bribes from an undercover FBI agentthe court found that prosecutors need only prove that an official obtained a payment to which he or she was not entitled and that there had been some understanding of a corrupt agreement. Justice Anthony Kennedy wrote a concurring opinion that appeared to directly contradict the courts own ruling in McCormick. A quid pro quo, Kennedy wrote, did not have to be stated in express terms in order to be a crime; otherwise, he continued, the laws effect could be frustrated by knowing winks and nods.
Ever since, says Kevin Russell, a Washington lawyer who is representing Blagojevich in Supreme Court appeal, the circuit courts have been left to reconcile these two rulings. For the most part, the lower courts have determined that the two standards should be used in different situations, with the McCormick standard (explicit quid pro quo) applied to cases involving campaign contributions, and the broader Evans standard (passive acceptance) applied to other cases that involve outright bribery and improper personal gainsuch as accepting cash-filled envelopes or personal loans or gifts, like fancy vacations. Settled, right? Hardly, legal experts agree. Over the years, the federal district courts and 13 circuit courts of appeal have interpreted the two standards differently and inconsistently. The courts are now divided as to whether Evans and McCormick are two very distinct standards, or Evans modified or superseded McCormick to become the one, reigning standard, even in cases involving campaign contributions.
Blagojevichs attorneys will argue in his petition for certiorari that his convictions were all related to his attempts to raise campaign funds, not stuff his own pockets. Because political fundraising is a protected activity that warrants heightened scrutiny and a higher bar for conviction, as the Supreme Court has repeatedly held, Blagojevichs lawyers say that the jurors in his trial should have been instructed that in order to convict Blagojevich, they needed to be convinced beyond a reasonable doubt that there was an explicit quid pro quo. Instead, Judge Zagel instructed the jurors that they just needed to find that Blagojevich had attempted or conspired to obtain property or money knowing or believing that it would be given to him in return for the taking, withholding, or other influencing of specific official action. Without the explicitness requirement, Blagojevich was found guilty on the same lower standard that the Supreme Court had rejected in McCormickas if he had solicited cash bribes, says Leonard Goodman, Blagojevichs appeals lawyer.
To be sure, there was ample and irrefutable evidence of a connection between the governors actions and his fundraising attempts. But, Goodman says, Blagojevich never made any explicit promises or deals. Rather, he says, while Blagojevich admits to seeking campaign donationsaggressively and brazenly, its fair to sayfrom donors he knew wanted some official action, the evidence does not show that he ever actually expressly promised to do anything to reciprocate or threaten them with tit-for-tat retaliation for not contributing to his campaign fund.
The prosecutors in Blagojevichs case say that he was rightfully convicted and sentenced. Blagojevichs complaint about the jury instructions, prosecutors say, is more about semantics than actual rule of law. They cite a litany of Supreme Court precedentparticularly relying on Evansthat the government was not required to allege, or prove, that Blagojevich expressed in any particular words any illicit deals. Practically speaking, this is how bribes occur in the real world. Jeffrey Cramer, a former U.S. attorney in Chicago, who is now the managing director of the investigations firm Berkley Research Group, says political corruption is never overt. Says Cramer: Its rare when someone says, Do A, and Ill do B. Its always with a wink and a nod. No politician has ever uttered the words, quid pro quo until after theyve been indicted.
Daniel Tokaji, a constitutional and election law professor at The Ohio State University, disagrees, arguing that the bright-line standard of McCormick should have been used in Blagojevichs case. Theres something to the merits of this argument, whatever one thinks of Governor Blagojevich, Tokaji says. Like it or not, he says, our political system is notoriously transactional. Political candidates and elected officials routinely solicit contributions from individuals and interest groups that want something in return, and many donors give money to ingratiate themselves with politicians. If you dont require quid-pro-quo explicitness, Tokaji says, its just too easy to criminalize ordinary politics.
An idiot can indict a sitting governor, says Harvey Silverglate, a prominent Boston civil liberties and defense lawyer who has sharply criticized Blagojevichs prosecution but is not associated with the case. Its so easy because ordinary political acts can qualify as federal felonies. Im not saying he should be given a medal, but Blagojevich was engaged in perfectly proper and very common political activity, and his actions were squeezed into the rubric of federal fraud laws. He was quite reckless. But recklessness is not criminal conduct.
Separately from the question of what constitutes corruption, Blagojevichs lawyers believe his case can be a vehicle for the Supreme Court to address wide disparity in his sentence compared with the sentences handed down to governors convicted of political corruption crimes.
Blagojevich has compared his prison sentence to Al Capones, the legendary gangster who received 11 years behind bars, versus Blagojevichs 14. Hyperbole aside, the former governor might have a point, some legal experts say. The sentence was outrageous, says Albert Alschuler, a retired University of Chicago Law School professor, who represented Blagojevichs gubernatorial predecessor, George Ryan, for his corruption appeal. Were talking about a nonviolent first-offender and no actual damage to the public interestjust a lot of talk about damaging the public interest. Leonard Cavise, professor emeritus of law at DePaul University, calls the sentence a miscarriage of justice.
In their petition for certiorari, Russell says, Blagojevichs lawyers will point to the more lenient sentences received by politicians who, in their view, committed similar, if not, more serious offenses. There is Ryan, who got six and a half years for steering millions of dollars in state contracts to friends in exchange for money and gifts during his tenures as secretary of state and governor. John Rowland, governor of Connecticut from 1995 to 2004, pleaded guilty to federal charges of conspiracy to commit fraud, admitting that he had not paid for $107,000 worth of work done on his weekend home by contractors who had business before the state. He was sentenced to a year and a day in prison. Theres also Edwin Edwards, Louisianas governor from 1992 to 1996, who received a sentence of 10 years for racketeering, conspiracy and extortion charges after accepting several million dollars worth of bribes related to the awarding of state riverboat casino licenses.
Then there are the more recent cases of governors Siegelman, of Alabama, and Bob McDonnell, of Virginia. Siegelman was convicted of bribery, racketeering, conspiracy and obstruction of justice for accepting $500,000 for one of his pet projects, a lottery campaign fund, from a donor whom Siegelman then reappointed to a state hospital regulatory board. The lottery fund incurred debts of more than $730,000 that were personally guaranteed by Siegelman, so the $500,000 payment greatly reduced his personal liability, a personal benefit. Siegelman was originally sentenced to 88 months but was resentenced to 78 months, or six and a half years. Meanwhile, McDonnell (along with his wife) was convicted of honest-services fraud for accepting $175,000 in loans and gifts, including fancy vacations, a Rolex watch, shopping sprees for his wife and a $15,000 gift for his daughters wedding reception, from a businessman who was trying to get the states public universities to conduct clinical trials for his companys dietary supplement. McDonnell got a prison sentence of 24 months and 24 months of supervised release. Last year, his convictions were vacated on appeal by the Supreme Court.
It bears mentioning that Blagojevich was sentenced as if he had actually pocketed $1.625 million in cash bribes. Most of this amount comes from the $1.5 million in campaign contributions that he was offered by backers of then-Representative Jesse Jackson Jr. if Blagojevich named Jackson to Obamas old Senate seat. No such contribution was ever made. In fact, in its pre-sentencing report, the U.S. Probation Department concluded that Blagojevichs sentence should not be based on the $1.5 million unsolicited offer by Jacksons associates because there was not enough evidence to support that this is the amount the defendant could obtain or thought he could obtain. Even though Zagel conceded at the sentencing that Blagojevich probably would never have ended up appointing Jacksonthe governor loathed himthe judge rejected the probation departments recommendation and included the full $1.5 million into his calculation of the offense level. That was the only thing the probation department agreed with us on, and we still ended up losing, recalls Sheldon Sorosky, who represented Blagojevich at trial.
Under the federal sentencing statute, judges are also bound to take into account all circumstances of a defendants offense and history to find a sentence sufficient but not greater than necessary to achieve the goals of sentencing. When judges hand out sentences outside the range prescribed by the sentencing guidelines, they are required to consider the defendants nonfrivolous argumentsin Blagojevichs case, a claim that his 168-month sentence amounted to an unwarranted disparityand then explain why they imposed the sentences they did. At sentencing, Blagojevichs lawyers contend, Zagel neither considered Blagojevichs disparity claim nor adequately explained to Blagojevich why he rejected it. On appeal, the Seventh Circuit Court of Appeals found that because Zagel had sentenced Blagojevich within the sentencing guidelines, his consideration and explanation were legally sufficient. But in the certiorari petition, Blagojevichs legal team will argue that the majority of the circuit courts err on the side of requiring judges to consider and address any nonfrivolous arguments. And they will point to more common precedent from other appellate courts in which judges have remanded cases back to the district courts for new re-sentencing hearings because the trial judges did not address the specific arguments made by the defendants.
If Blagojevichs sentence was marred by this procedural error, the Supreme Court could call for a new sentencing hearing, which, Russell says, can be a very meaningful remedy. Better yet for Blagojevich, if the justices decide to reverse some or all of Blagojevichs convictions based on inaccurate jury instructions, he could be granted a third trial or be released early, maybe even immediately.
For many of us, a third Blagojevich trial might be hard to stomach. But Tokaji, for one, says that it could be in the best interests of justice. I lean toward the good government side of these issues, he says. But I worry that it might become too easy to convict politicians of bribery for, lets be honest, for the things that elected officials have to do to stay in office. And juries in this day are especially suspicious of politicians. I worry that theyre going to see bribery where it might actually not be there.
That is EXCELLENT.
All that and not one mention of Blago buddies Antoin Rezko and Nadhmi Auchi?
ROFLMAO! Just emailed it to my buds.
That’s a gut buster!
Blago must have really pissed off some democRats somewhere.
So...Help me out here.
Exactly what's the problem with this?
Wow, the argument for Blago, boiled down to its essential, is that we should just accept “the swamp”.
Unequal application of the law. If everyone is prosecutable, but only some are prosecuted, that amounts to arbitrary power and control.
He was deposed from his office. To me, that would seem enough. It's "capital punishment" in political terms. Well, so he got prison, but he's been in there a long time. The idea that he deserves what seems like "life", in practical terms, is to me an absurd conceit.
C’mon, Rod. Give up Zero.
Trump is so entertaining.
Blago should be free, Bergdahl should take his place.
Bergdahl needs to meet a rope and a tree.
Practically speaking, the 1st thing to do is take down the most “public” and blatant violators of the law. As long as a vigorous, sustained, and consistent effort is made to do so, those accused cannot cry “unfair”, just because not all are caught.
This is somewhat analogous to catching speeders: The Highway Patrol cannot arrest everyone speeding, but they can make a public show of catching the worst offenders, which helps to hold down overall speeds, if not the number of offenders. If your officers and other information indicates “insufficient effect”, then ramp up enforcement.
The argument “but officer, what about that guy who passed me 5 miles back?” holds no water.
Insofar as political corruption goes, I think the efforts against it in IL need to be at least quadrupled.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.