Blagojevich Trial: Is Blago Too Unserious for Jail Time?

The jury remains out, and observers are starting to get antsy, jumping when the jurors ask a question. Here’s a theory as to why they’re taking so long: the jury has to deal with the interpretation of a statute that’s currently vexing legal scholars.

Rod Blagojevich signing autograph


When people ask how Illinois ended up with Rod Blagojevich in the first place, my only explanation is that after the Ryan scandals, being a harmless-seeming doofus was not, per se, a liability.

Consider: George Ryan was convicted for his role in subtle, widespread corruption that caused real damage and took years to uncover. Rod Blagojevich, on the other hand, is on trial for alleged attempts at corruption that were completely unsubtle, hamfisted, utterly failed, and took place largely inside the ex-governor’s own head. And I think it’s making his actions harder to pin down, especially under a complex law that’s in flux.

By now we’re a week into jury deliberations, and the natives, or at least the handful who are still paying attention, are growing restless. But I don’t think we should be surprised. For starters, the list of charges is fairly complex; I needed a refresher just to remind myself what they were. Rob Wildeboer of WBEZ did an admirable job breaking it down, but just the summary is pretty long. As will happen when there are twenty counts resting on the finer points of wire fraud, conspiracy, and extortion.

And they are, in some cases, very fine points. Some of the charges are based on exchanges that make wire fraud out to be a practically metaphysical question. Blagojevich discussing his “[bedroom epithet] golden” Senate appointment resulted in my favorite line from the entire trial, in which the subtleties of political horse-trading versus fraud collapse into a singularity:

SCOFIELD: I do, but this, this, we’re not talking as part of discussions for anything else.

BLAGOJEVICH: Well, it’s unsaid. You understand what I’m sayin’?

That’s Blagojevich for you: “let me be explicit about how I cannot be explicit.” For all the idiotic things our ex-governor has said throughout his exile, that line is worthy of Scorsese. A Scorsese rough cut, anyway.

Wildeboer thinks Blagojevich will be convicted on several counts, but just in trying to figure out which ones I’d bet on, I got confused. Not being a lawyer, or even particularly bright, I decided to take a couple counts Wildeboer thinks Blagojevich will be found guilty on: relating to conversations Blago had on or around 11/12/08 about his idea for a non-profit about health care something-or-other, and kids. (There’s not as much political power in puppies.)

On one hand, from the transcripts, you can see Blagojevich dancing around the line of legality so much that he arguably tramples it to dust:

How do you make a deal like that? I mean it’s gotta be legal obviously, but… But it’s very common place is it not? Doin’ things like this? Ah, I mean that kind of 501©,©(4) is not unusual.


Yeah I mean grateful and appreciative, I’m supposed to rely on that when I’m about to do somethin’ big like this for them. And this is the best they can give me. Essentially rely that down the road I can count on them for somethin’ because they’re grateful and appreciative, therefore the imp-, implication is there’s something good for you down the road. But you won’t do it now.


Um, you, you, look, I really believe you can do more good than just putting Valerie Jarrett there and get nothin’ back.

As it’s put in the indictment: “A highly paid leadership position with a newly-created not-for- profit corporation that ROD BLAGOJEVICH believed could be funded with large contributions by persons associated with the President-elect.”

But I spent the better part of last night and today reading up on wire fraud, as it relates to the Blagojevich indictment. And the more I read, the more confused I got. And I got confused, for what I can tell, is a good reason.

Around the time of the first trial, the Supreme Court decided to take a look at Title 18 of the US Code, Section 1346, a 21-year-old law that makes it a crime to fraudulently deprive another of “honest services.” As Michael Miner put it in a good brief history of the honest-services law: “the question becomes: is an intangible right to honesty too amorphous a concept to hang a prison sentence on? Shouldn’t that hang on dishonesty’s tangible benefits and harm?”

The original Blagojevich indictment hung its hat on the honest-services law. When it seemed that the court would invalidate Section 1346 as unconstitutional, the feds decided they should hedge their bets: “The indictment includes new counts of racketeering, attempted extortion, extortion conspiracy, bribery and bribery conspiracy….” Patrick Fitzgerald, in his filing, was explicit about this:

The Second Superseding Indictment is fashioned in such a way that, should the Supreme Court rule Title 18, United States Code, Section 1346 unconstitutional, the charges, or section of charges, of the Second Superseding Indictment related to Section 1346 can be easily dismissed. Such dismissal would do little to effect the trial in the instant case as the underlying illegal conduct charged in the Section 1346 counts is alleged in other counts of the Second Superseding Indictment.

But the Supreme Court didn’t find Section 1346 unconstitutional. Excessively vague for the Court’s taste in law, but not completely useless. So they narrowed its application:

The Supreme Court held that “honest-services fraud does not encompass conduct more wide-ranging than the paradigmatic cases of bribes and kickbacks.” In other words, defendants accused of violating 18 U.S.C. § 1346 must have received some benefit from the conduct, that they lined their pockets, not just that some harm was inflicted through a breach of a fiduciary duty.

The Supreme Court went out of its way to castigate the government’s argument that the statute also covered “undisclosed self-dealing by a public official or private employee.” It noted that even if Congress wanted to criminalize this type of conflict of interest, without proving a bribe or kickback, it would be difficult to craft a statute that did not run into the problem of being unconstitutionally vague.

But Section 1346 didn’t find its way out of the Blagojevich indictment; to paraphrase Fitzgerald, they left it in their in case the jury thinks Blagojevich broke it, but if they don’t, no big deal: “the charges… related to Section 1346 can be easily dismissed.” No problem. For Fitzgerald, at least; the jury still has to deal with it.

Basically, that means that the Blagojevich jury is left with determining the application of a statute that remains vague but is more specific in its application. So there’s one roadblock.

Another, I think, is this: is Blagojevich asking for a kickback or submitting a bribe in the charges relating to the non-profit (which would be illegal under Section 1346), or was he doing something closer to “undisclosed self-dealing"?

(My theory as to what was going through Blagojevich’s mind: he knew, as we all do, that politicians departing office usually end up in positions of power, either at firms, or foundations, or universities. He also knew that in the court of public opinion, he was meat, and being mostly untouchable, wouldn’t get what other ex-pols do. So he couldn’t bring himself to just trust that Obama or Emanuel or anyone else would set him up, which he’s clear about in the wiretaps. But he also knew he couldn’t just explicitly hold the Senate appointment hostage. But his worry was such that he was willing to talk in circles around the idea, and the circles turned into a very, very deep hole.)

Well, first you have to figure out what “undisclosed self-dealing” is. According to a proposed law meant to sew up the Skilling loophole (PDF), it means among other things “a public official performs an official act for the purpose, in whole or in part, of benefitting or furthering a financial interest of [himself, family, friends, etc]” and does so without saying he’s doing it, and hides information that would suggest he is. Which is arguably no more helpful than the original interpretation of 1346.

Okay, so now we “know” what undisclosed self-dealing is. And that it’s legal under Section 1346, whereas bribery and kickbacks aren’t. Now the question remains: is Blagojevich guilty or innocent under 1346? It’s obvious what Blagojevich was trying to do… it’s less obvious how that fits into the legal categories created first by 1346, and subsequently by the Supreme Court’s very recent narrowing of it. All of which are a matter of contention in the legal community, not to mention the political and financial communities. A good introduction to the contention is “Criminalizing the Denial of Honest Services After Skilling” (PDF), a March article in the Wisconsin Law Review by Elizabeth Sheyn, a clerk on the Sixth Circuit Court of Appeals.

Now take that question and give it to twelve people. And given them 19 more questions much like it. That’s what’s going on with the Blagojevich jury right now. Which is why I’m totally not surprised that the jury had questions about wire fraud, because that pulls in 1346. The same thing happened in the original trial after 12 days of deliberation. It’s just complicated. Keep in mind what one of the jurors said after the first trial: “It was like, ‘Here’s a manual, go fly the space shuttle.”

All of which is a long way of saying I’m not really surprised the jury is still out. It was difficult enough for me just to parse through the ramifications of a couple counts of the indictment. Other counts may seem more straightforward to the jurors, and as noted before, the feds hedged their bets. But the infernally tricky wire-fraud counts are still there, and the jurors have to cope with them.


Photograph: Chicago Tribune


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