Rod Blagojevich, 58, shouldn’t be getting the hair dye ready quite yet (rumor has it it's apparently gone snow white).
When the 7th Circuit U.S. Court of Appeals court finally ruled today, 17 months after it held oral arguments, it threw out five convictions from Blagojevich's second trial. The court vacated his 14-year sentence, but U.S. Appellate Court Judge Frank Easterbrook, writing for the three-judge panel, noted that the evidence against him was “overwhelming,” and concluded that the former governor of Illinois won’t be getting out of prison while the possible retrial and definite re-sentencing hearing occur.
That leaves 13 counts in place, and the judge who will likely preside over the retrial, if any, and the re-sentencing is the same judge who presided over Blago’s two trials and handed him the 14 year sentence. That would be U.S. District Judge James Zagel.
I’m not the only reporter who has written that Judge Zagel seemed to have it in for Blago’s sometimes stumbling defense team, led by his old friend Shelly Sorosky. I’m not a lawyer, but as I watched the proceedings at the Dirksen Federal Court House back in 2010 I heard so many “overruled’s” directed the defense’s way that it seemed oddly comical.
When I heard the news that the appeals court had finally issued its decision, I called the most celebrated criminal defense lawyer in the city, Eddie Genson. Genson had represented Blago in his impeachment trial and for a while in the legal case, although Genson was off the case by time it went to trial.
“What the court basically said is that what Blago did was just politics and that the judge’s instructions to the jury didn’t provide for that," Genson says. "The court used the phrase 'logrolling’—exchanging one job for another. You can’t get much clearer than that. Swapping one job for another isn’t a violation of the statute…The jury was not instructed properly.”
At the December 2013 oral arguments for the appeal, Easterbrook had asked prosecutors how Blago’s actions differed from the usual “horse-trading” engaged in by politicians. (One instance involved appointing Valerie Jarrett to the Senate seat in exchange for Blago getting a Cabinet position; another instance involved the possibility of trading the seat for an ambassadorship or even campaign cash.)
Easterbrook raised the venerated figures of Dwight Eisenhower and former Supreme Court Justice Earl Warren who made a famous trade—California goes for Ike as president and Warren, then California’s governor, gets a seat on the Supreme Court. Easterbrook noted that were the standards applied to Blago applied to Ike and Warren, both could have landed behind bars.
“Will the [the U.S. Attorney’s office in Chicago] retry Blago on the five counts?” I ask Genson.
“No one will retry anything,” he answers.
As for the re-sentencing: “The government will argue that the same sentence of 14 years be imposed, no matter that [those five] convictions were reversed,” says Genson. “The defense, on the other hand, will argue that the reversal on those convictions means there should be a shorter sentence.”
Aaron Goldstein, a young (now 40) criminal defense lawyer who was a central player in both trials and accompanied Rod to Colorado on the day he reported to prison, agrees that a retrial is unlikely. “If I had to guess, I’d say no. Two of the prosecutors have gone into private practice and another is now a judge.”
I asked Genson if the judge could prorate the sentence taking into account the dropping of the five convictions. “My guess is he’ll get some reduction.”
I called Rod’s brother, Robert, who was anxiously awaiting the appeals court ruling and told me when we talked at my house in Chicago last month that he didn’t understand why it was taking so long. Rob, who stood trial with his brother the first time around but not the second because the government, faced with a hung jury, dropped the charges, sounded more resigned than happy. He hadn’t read the 23-page appellate opinion yet, but he told me with the same bitterness he displayed when we talked in June that the court still seems to think that Rod approached Jesse Jackson, Jr. to offer Barack Obama’s Senate seat in exchange for millions of dollars. “The assumption is that Rod initiated that. It was initiated by Jackson’s emissaries and rejected by me.”
[Here’s what Easterbrook writes on that subject: “Blagojevich then turned to supporters of Rep. Jesse Jackson, Jr., offering the appointment in exchange for a $1.5 million “campaign contribution.” (We put “campaign contribution” in quotation marks because Blagojevich was serving his second term as Governor and had decided not to run for a third. A jury was entitled to conclude that the money was for his personal benefit rather than a campaign.) Blagojevich broke off negotiations after learning about the wiretaps, and he was arrested before he could negotiate with anyone else.”]
“There’s no justice,” said Rob, who is totally estranged from his brother and his brother’s wife, Patti. And no, he hadn’t tried to reach Rod today. No point—Rod won’t speak to him and had earlier refused to see him when Rob traveled to the prison in Colorado.
The most “just outcome,” says Rob, who lives with his wife in Nashville and is still struggling to put his business life together, is that Judge Zagel reduce the sentence to time served at three and [almost] one-half years. “Highly unrealisitic,” he admits, but “my brother has so much to contribute. His family wants him home. He could be a vital part of his daughters' lives. Let him go now and move on.”
Unrealistic because Easterbrook noted that “….we have affirmed the convictions [on 13 of the 18] counts and concluded that the advisory sentencing range lies above 168 months [i.e. 14 years]. Blagojevich is not entitled to be released pending these further proceedings.”
Goldstein is understandably reluctant to take the bait I offer when I ask him if he thinks Judge Zagel was unfair to Blago. “There’s probably nothing to say at this point. I’ve been in front of him other times and he’s a brilliant man.”
Goldstein is also reluctant to predict what Zagel will do about re-sentencing. “We would have to get into Zagel’s head and to what degree those five convictions weighed in the sentencing. If they were significant, there would have to be a mental proration. He would have to take into account mitigating factors—what has gone on in Blago’s life, what best fits the factors under the law of what is best for society, what best deters crime.”
“How do you get into Zagel’s head?” I ask.
“Everything that he spoke in court is on the record, everything he said orally and wrote in opinions,” he says.
Goldstein is uncertain of what, if anything, his involvement will be, but he adds, “All we as lawyers can do is argue the law, the mitigating factors, and why someone of Rod’s age and criminal history is deserving of a shorter sentence.”
Prosecutors could also appeal the appeals court ruling. That would mean an attempt to persuade the Supreme Court to hear the appeal. An interesting outcome. A potentially entertaining spectacle. Unlikely, but who knows?