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Blago’s Last Stand

If the Supreme Court agrees this fall to hear the ex-governor’s final appeal, his lawyers feel they’ll have a strong case.

Former Illinois Governor Rod Blagojevich after testifying in his second trial in 2011. He was convicted a month later.   Photo: Chris Walker/Chicago Tribune

Five and a half years into his 14-year sentence for corruption, after two trials and multiple appeals, former Illinois governor Rod Blagojevich and his legal team are about to play their final card. Sometime in the weeks ahead, before a November 2 deadline, they intend to file a petition for a writ of certiorari: an entreaty to the U.S. Supreme Court to review the case.

If the justices decide to reverse some or all of Blagojevich’s convictions—that is, if they even agree to take on his case in the first place—he could be granted a third trial or be released early, maybe even immediately. But a denial by the high court would in all likelihood close the nine-year saga of the case of United States of America v. Rod Blagojevich, and, barring a presidential pardon, the ex-governor will have to serve out his sentence until he is eligible for release in 2024, when he’ll be 68.

Here are the central arguments Blagojevich’s team will likely make.

1. The lower courts’ definition of public corruption was too wide.

Blagojevich’s corruption convictions are unique, says Leonard Goodman, the ex-governor’s attorney. Unlike in virtually every other corruption case, in which crooked pols have been prosecuted for schemes to trade political favors and influence for cash bribes, luxury gifts, and vacations, all of Blagojevich’s 13 remaining convictions (an appellate court overturned five others in 2015, though his sentence was not reduced) are related to his attempts to raise campaign funds, not stuff his own pockets. This is a crucial distinction, Goodman says. The Supreme Court has routinely held that political campaign fundraising is a protected activity and warrants heightened scrutiny and a higher bar for conviction. Like it or not, 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. By the same token, officeholders frequently perform official acts that benefit their contributors. To treat soliciting contributions in the same way as accepting cash bribes, Goodman contends, “puts every public official, who must raise campaign funds to stay in office and to be effective, at the mercy of an ambitious or politically motivated federal prosecutor.”

In effect, the central question Blagojevich’s legal team will put to the Supreme Court is: When is politics as usual a federal crime? The justices have weighed in with some frequency on that question over the years. Each time a new case arises, the court makes a ruling and then leaves it to the lower courts to decipher, which often results in confusion. Even so, a number of decisions, particularly under Chief Justice John Roberts, have given Blagojevich and his lawyers cause for hope. In a series of cases decided between 2010 and 2016, the court has repeatedly held that federal anticorruption laws are too broad. In trying to draw a clearer line between legal and illegal, the justices have sent federal prosecutors a strong message: In your zeal to convict crooked politicians, you have overreached by criminalizing ordinary politics.

Especially important in the eyes of Blagojevich’s lawyers are four recent Supreme Court decisions: (1) the landmark 2010 Citizens United case, in which the court ruled that certain political monetary contributions are protected free speech and that political corruption is limited to quid pro quos, or “dollars for political favors”; (2) a 2010 decision involving former Enron CEO Jeffrey Skilling that raised the bar on convicting a politician for “deprivation of honest services”; (3) the 2014 McCutcheon v. Federal Election Commission case, which determined essentially that “ingratiation and access” is “not corruption” but rather a “central feature of democracy”; and (4) the unanimous ruling in June 2016 that overturned the gifts-for-favors conviction of Virginia governor Bob McDonnell on the grounds that prosecutors and the lower court judges had interpreted too broadly what constitutes an “official act.”

The Citizens United case laid the groundwork for the court’s narrower definition of what’s criminal conduct and what’s just politics, holding that it is not corruption for someone to give campaign contributions in pursuit of “ingratiation and access.” Blagojevich’s team believes the ruling in Skilling’s case is particularly important because it requires prosecutors to find that a defendant has received bribes or kickbacks for an honest services fraud prosecution. The team’s contention that soliciting campaign contributions constitutes a political act, not a personal benefit, goes to the heart of Blagojevich’s defense. The McCutcheon case, says Goodman, also supports his client’s legal arguments. In that ruling, the justices acknowledged that the line can be blurry between political fundraising and corruption, but because fundraising is protected speech, prosecutors must meet a higher burden of proof before filing criminal charges. And in deciding for McDonnell, the court set a new, even stricter standard for official bribery cases that makes it much harder for the government to win corruption convictions, let alone serve indictments like the one against Blagojevich.

In effect, Goodman and his team will aim to convince the justices that there’s uncertainty about the law—and inconsistencies in how it’s interpreted by both prosecutors and judges. More fundamentally, they intend to invoke those recent Supreme Court precedents in hopes the justices will consider an essential question in a favorable light: Would Blagojevich have been found guilty under these stricter standards?

2. Blagojevich’s “good faith” testimony was suppressed.

The former governor did not testify at his first trial, which ended with a hung jury on all but one count—he was found guilty of making false statements to the FBI—and was declared a mistrial on the others. In his second, he did take the stand, after district judge James B. Zagel said he would allow Blagojevich to make a good faith defense, which is available for crimes requiring proof of a fraudulent intent. Essentially, it means that a person cannot be convicted of certain crimes unless that person knew what he or she was doing was illegal. This principle derives from common law and is known as mens rea (Latin for “a guilty mind”).

Good faith was central to Blagojevich’s defense. He never claimed that what he did was OK because every other politician did it (the “everyone is doing it” excuse) or that he committed misdeeds because he had willfully ignored the law. Blagojevich maintained that he knew the law. For all his recklessness, he insisted, he had a good understanding of what was and wasn’t permissible for a statewide officeholder. He was aware that making explicit promises to donors crossed the legality line, and he believed his negotiations over the disposition of Barack Obama’s Senate seat—which prosecutors argued he intended to “sell” to the highest bidder—were completely lawful. And, in fact, he would go on to be partially vindicated in 2015, when a three-judge panel of the U.S. 7th Circuit Court of Appeals threw out five of the 18 convictions against him from the second trial; all five of the vacated counts involved Blagojevich’s attempts to trade the Senate seat for a political appointment or a public interest job. But after Blagojevich began testifying in his second trial, prosecutors objected to the ex-governor using the good faith defense on the stand, and Judge Zagel allowed the objection, thus prohibiting Blagojevich from telling the jury that he believed he wasn’t acting criminally. In Goodman’s mind, Zagel’s decision amounted to pulling the rug out from under Blagojevich. “It was a really unfair, shocking ruling, to let somebody begin his testimony with the understanding that he could present his defense, and then tell him after he gets on the stand that, in fact, you can’t. It was his whole defense! What are you supposed to think if you’re a juror and a guy gets up to testify and he basically has no defense?”

3. The jury received flawed instructions.

In Blagojevich’s 2015 appeal, the appellate court found that the jury in the second trial had received flawed instructions on five of the 18 counts of which he’d been convicted—the five that were then tossed. If the Supreme Court agrees to hear Blagojevich’s case, his lawyers will argue that the jurors received flawed instructions on other counts as well.

First, according to Goodman, the judge should have told jurors that to convict Blagojevich they would need to be convinced beyond a reasonable doubt that the evidence showed that he had “knowledge of wrongdoing.” But the wording, suggested by prosecutors, that Judge Zagel used in the second trial told jurors: “The government is not required to prove that the defendant knew his acts were unlawful.”

Goodman says that Zagel’s instructions also contained wording that violated statutory language set 26 years earlier by the Supreme Court in McCormick v. United States, which established that officials can be found guilty of extortion or bribery only if there is “an explicit promise” to “perform or not perform a public act” in exchange for a payment. In other words, the government must prove a clear quid pro quo. In Blagojevich’s case, Zagel instructed jurors to convict Blagojevich on extortion charges if they found he 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.” In other words, the jury just needed to find that there was a connection between the request and the action to find him guilty, not an explicit promise. As Goodman contends: “Blagojevich was convicted under the same standard of proof as if he had solicited cash bribes.” 

Essentially, says Goodman, Judge Zagel’s instructions contained a definition of wrongdoing that was too broad in the context of Blagojevich’s good faith defense and thus misstated the law. That, in turn, allowed the jury to convict Blagojevich just for trying to make what amounted to purely political deals, something he has never denied doing—and something that, in Goodman’s understanding of Supreme Court precedent, is not sufficient grounds to convict for corruption. Says Goodman: “It’s sort of like having a case where somebody is charged with inciting a riot for giving an incendiary speech: You instruct the jury that if you find that he, in fact, gave this speech, you should find that he had the intent to start a riot.”

To drive home this point, Goodman and his team may invoke a 2015 Supreme Court decision that overturned the conviction of a Pennsylvania man named Anthony Elonis, who’d written a series of Facebook posts disparaging his estranged wife and making reference to bombing a police station and shooting up a kindergarten classroom. A jury had convicted Elonis under a federal law that makes it a crime to send a message threatening harm to others, though Elonis said he never intended his words as a threat. In reversing Elonis’s conviction, the Supreme Court held that it mattered what the defendant was thinking when he wrote his posts and that the prosecutors’ instructions to the jury had been invalid. “Wrongdoing must be conscious to be criminal,” Chief Justice Roberts wrote. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

Goodman and his team are hoping to persuade the Supreme Court to see the parallel to Blagojevich’s case as clearly as they do.

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