The conviction of former Illinois governor Rod Blagojevich represents a courtroom victory for United States Attorney Patrick Fitzgerald after a series of defeats, but to get this win, Fitzgerald had to convince a jury that sharp-elbowed politics is something for which a man should spend time in prison.
The most controversial charge Blagojevich faced was that he planned to sell Barack Obama’s U.S. Senate seat. But Fitzgerald decided to come out swinging, terminated the wiretaps on Blagojevich’s home and office, arrested the then-sitting governor, held a sensational press conference, and called it a wrap before this alleged sale would have even taken place. Fitzgerald was obviously unwilling to wait out the unfolding situation to see if the governor was really serious about “selling” the seat to the highest bidder.
Had Blagojevich actually followed through with the sale of a Senate seat, Fitzgerald’s heavy-handed prosecutorial approach might have been justified. But in light of the fact that no seat was sold, and that these appointments are regularly used for political benefit, the reasonable doubt that a crime was actually committed would appear to be overwhelming. For a US Attorney who is known for “crossing his T’s and dotting his I’s,” you have to wonder why Fitzgerald didn’t spring into action after the sale of the seat, once the dirty deal was done. Blagojevich’s own writing may give us a clue. Blagojevich claims in his memoir, “The Governor,” that the goal of the Senate appointment was to get a political opponent out of the way, not to sell the seat for cash. If this scenario is to be believed, then Fitzgerald went forward with the case when he did because, had he waited until after the seat was filled, there would not have been a case since the seat would have been awarded not for cash, but for quite traditional political advantage.
One of the most shocking, and seemingly damning, sound bites that came from the wiretaps was Blagojevich’s assertion that Obama’s Senate seat was “a [expletive] valuable thing. You don’t just give it away for nothing.” A U.S. Attorney whose last few cases ended unfavorably might be interested in spinning this quote to seem as though a cash transaction was being arranged in exchange for the Senate seat. However, if Blagojevich were looking to use the seat for his political benefit, then his statement would be crass, but would also be evidence that he was operating within the parameters of the law. The type of political maneuvering engaged in by the then-governor may seem to the average citizen (or juror, for that matter), to be less than wholesome, perhaps even a bit sneaky, but if every unwholesome or sneaky maneuver were a crime, we would not be able to build the prisons quickly enough to meet demand.
In 1996, former Massachusetts Governor William Weld (a Republican) appointed then-President of the State Senate William Bulger (a Democrat) to be head of the University of Massachusetts system. As keen political observers noted at the time, the appointment would keep a powerful political foe out of the governor’s hair. Following the election that vacated his seat in the Senate, then President-elect Obama gave GOPer John Huntsman a prestigious position as Ambassador to China. This shocking move was interpreted by many Beltway observers as a shrewd attempt at keeping a potential 2012 opponent (who nonetheless has since announced his candidacy) out of the race. Given the federal government’s expansive and vague interpretation of the “honest services” statute, surely these appointments, arguably made solely for political reasons, represent violations of “honest services” much like the political machinations of Blagojevich that now likely will send him to jail.
Copyright 2011 Forbes
