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The Troubling Rod Blagojevich Ruling

How the Seventh Circuit found that auctioning off a Senate seat was legal.

The Seventh Circuit Appeals Court, which has jurisdiction over Illinois, and by extension Chicago style politics, recently threw out five of 18 criminal counts against ex-Governor of Illinois Rod Blagojevich. (Even before he was sent to prison, he was impeached from the governorship.)

As a refresher, when Rod Blagojevich was governor, he tried to extort campaign contributions from a children’s hospital, among others. But his misdeeds came to a head when then Senator Obama ascended to the Presidency, leaving the governor with a U.S. Senate seat to fill by appointment. According to the U.S. attorney, Blagojevich was already in the midst of a crime spree that was being picked up by a federal wire tap.

In Blagojevich’s own words the Senate seat appointment was “f-—ing golden.” And he tried to parlay it for his own benefit. Mostly what he seemed to want was a better job than being governor of a major state. At one point, Blagojevich wanted a lucrative private sector job or to be a member of Obama’s cabinet. The response from the Obama administration to both requests was “no.” This rebuff apparently inspired more f-bombs from the governor — one of which made it into the Seventh Circuit’s opinion: “They’re not willing to give me anything except appreciation. F-—them.”

And the opinion is not without its clever moments of levity like, “’Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion under the Hobbs Act, just as it can furnish the gist of a Monty Python sketch.”

But on a more serious note, the ruling says trying to trade the appointment to the U.S. Senate seat for a cabinet position is not a crime. According to the court, this is merely “political logrolling.” As the Seventh Circuit put it, “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.”

The Court analogized Blagojevich’s deal for a cabinet position for himself to legislators agreeing you vote for X bill, if I vote for Y bill. The Seventh Circuit argues: “Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”

But Blagojevich’s let me help myself to a cabinet position for the senatorial appointment and typical legislative logrolling can be distinguished. For one, legislators are in the same branch of government working with one another for a common public purpose. Blagojevich’s attempted deal involved state and federal actors as well as two branches of the federal government. Also legislative logrolling is appropriately part of the job of a legislator. It cannot be said that part of being governor is craving and maneuvering to secure a better, more high profile, tax-payer funded job. Here the governor was just trying to help himself. Moreover, democratic accountability is different with legislative logrolling. If constituents don’t like the way their representative has been voting on legislation, they can vote them out. There’s less accountability for presidential appointments. Voters can’t vote out a cabinet member and they only get one chance to vote a president out of office under the 22nd Amendment.

But on a more basic level, deciding that Blagojevich’s attempt to get a cabinet position by ransoming the senate appointment isn’t criminal sends a troubling message that elected officials can think of their own fortunes instead of the fortunes of the voters who they represent. Is Rod Blagojevich’s behavior really what we want to encourage? Apparently the Seventh Circuit thinks so.

It’s not just the Seventh Circuit. This Court was relying on the Supreme Court’s Skilling case where an ex-Enron executive ended up curtailing what counts as honest services fraud. As the Seventh Circuit wrote in the Blagojevich case: “but where’s the fraud? … The prosecutor contended that Blagojevich deprived the public of its intangible right to his honest services, which 18 U.S.C. §1346 defines as a form of fraud. To call this an honest-services fraud supposes an extreme version of truth in politics…. The holding of Skilling v. United States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-trading.” Thus, the Courts are narrowing what counts as corruption down to a disappearing nub. This can’t be healthy.

At least the Court didn’t fall for Blago’s “I’m just a nice guy” chicanery. For example, the Court wrote “[t]he evidence that Blagojevich sought money in exchange for appointing Valerie Jarrett to the Senate is sufficient to convict, so there is no double jeopardy obstacle to retrial.” And the ex-Governor doesn’t get out of jail because his other numerous convictions still stand. In fact, the Seventh Circuit hints that he could have been sentenced to even more time than the 14 years he originally received given the seriousness of his remaining crimes.

But in the long run the Seventh Circuit did something that could have a lasting deleterious impact — they said that this type of backroom deal is ok even when the beneficiary is an elected politician trying to pad his own resume with another public job. 

(Photo: AP)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.