Blago shouldn't just walk; he should sue the government for defaming his character. He went free on 23 of 24 counts. The one count that he didn't go free on, shouldn't even be a law: he was found guilty of lying to the FBI. That lame law did not require a wiretap to find him guilty. Nor did it require the very public desecration of a man's name. Chicago politicians are quite capable of desecrating their own names without the help of the federal government. The job of the federal prosecutor is to work hard to let courts and verdicts find a man guilty or innocent.
The federal government – 1. failed to build a winning case 2. failed to build a credible case 3. failed to go after any corrupt Chicago politician of significance. All three of which make me question the value of the FBI and the need for its existence. On top of that, it is worth noting that once the prosecution rested with their case, Blagojevich's team was so certain that they had not proven the case that Blagojevich did not even put on a defense. He did not defend himself in a federal criminal case and still had a hung jury. Part of the FBI's mission, found here, is to "uphold and enforce the criminal laws of the United States." If you can't win a corruption case in Chicago, you're doing something wrong. That leaves me with the feeling that the FBI and the Department of Justice have deeper trouble than Blago. The FBI's latest dustup with Wikipedia over the FBI logo shows how out of touch with reality the FBI is. Maybe it's time to try a new approach.
As the laws stand, you can't lie to the FBI, or else you'll go to jail. Specifically Blago was convicted of telling two lies: 1. That he maintains a firewall between state business and politics and 2. That he does not track, or want to know, who contributes to him or how much. These can be found here, on page 69 of the federal indictment against Blagojevich. Blago will go to prison simply because he said those things. The law assumes an allegiance to the God-like superiority of the State over the people by saying that lying to the FBI is not allowed. I think lying's a bad thing to do, but thankfully, all things that I think are bad are not illegal.
While we are not allowed to lie to the great couriers of justice, the FBI, they are allowed to do things to us that would be considered indecent among the common people. The FBI can wiretap your home phone lines, record your phone conversations, and play them publicly for all to hear, even when playing them is irrelevant to any criminal proceeding. They can break into your office while you're not there and your staff is away, using locksmithing equipment for jimmying locks. Once in your offices they can plant bugs and put you under surveillance. They can do worse things, as well; those things didn't get mentioned during the Blago trial. It's odd that we willingly cede our rights to a government that so ineffectively uses those powers to protect us. We don't require much in return.
Allowing the FBI to behave in such a way assumes an allegiance to the God-like goodness of the FBI. No person that is not entirely good and trustworthy should be able to invade private space. He or she might end up doing bad things with what is learned in that private space. The thing is, no one is pure. People do bad things. Even government does bad things, because government is not a theory, but is a group of real people, which means that government makes mistakes, sometimes really big ones. Despite all this, our laws tell us that the great State must never be lied to, and the great State must never be denied secret entrance to your most private places. To deny the great State that authority will put you at risk of very public embarrassment, expensive legal bills, jail time, loss of sacred honor, liberty, and even life. Strangely, some very good people do not realize that the great State is not God, yet they treat it like a deity, like the greatest deity, because even God offers us free will.
That breaking and entering and planting bugs stuff is not from some action film that I once watched about the FBI. It's from reality, or at least as much reality as was allowed out in federal court this summer during the Blagojevich trial. The FBI broke into the Friends of Blagojevich campaign office to plant bugs in two rooms, planted a camera outside and began observing what was happening there. Or, as gently stated in the criminal complaint, which can be found here, "On the morning of October 22, 2008, the FBI began intercepting oral communications in those rooms." Information collected during the surveillance of those rooms and the Blagojevich family's tapped home phone line was played publicly, making people cringe in embarrassment over their governor. Then after the shock wore off, many attentive people who heard the tapes were left with a sort of "So what? Is being skuzzy illegal?" and "Aren't there bigger fish that also need frying?"
The definitions of privacy and the role of government seem to be upside-down in this day. Government keeps secrets from the governed. Individuals can be tormented, prosecuted, fined, and imprisoned for releasing them. Sadly, WikiLeaks will likely become a good example of this. Government discloses our secrets. We may not legally hide from their pursuit of our secrets, no matter how innocent we are. It's as if the new standard is for government to be as secretive as possible, but to expect for the governed to be without privacy. Common sense would dictate a contrary situation: that government has no right being secretive and individuals have unimpeachable privacy.
There's a meaningful distinction in privacy as it relates to Blagojevich – is discussion about state business really a private matter? I am inclined to say that it should not be private. Greater transparency and less power in the hands of government would likely make for a better government. However, that must be evenly applied. A law that is randomly applied to punish only a small number of people is not a just law. Anything Blagojevich is subject to, every politician should be subject to. That is currently not the case, since the private phone calls of the rest of the country's wheeling and dealing politicians are not being played on the evening news. One of the disservices of this case is that other politicians are not being held to the same standard as Blagojevich.
Trying to affect public opinion is not enough of a reason to warrant breaking and entering and bugging an innocent man's office. There's something wrong with the fact the government did that. Destroying a man's reputation is not the goal of our criminal system. Finding a man guilty or not guilty is. The guilty are then punished and separated from society. Even though Blago was not convicted on 23 of the 24 counts, Blago really looks very guilty to the great masses that unquestioningly digest spoonful after spoonful of whatever stewed and mashed baby food the media feeds them. And the people who pull the levers of power in Chicago and at the highest levels of our country are in contrast made to look like great citizens, when they are likely more deserving of shackles than the former governor.
The FBI failed to effectively use these powers to build a case against Blagojevich. Without the power to wiretap, the outcome of this case would have been the same – Blago found guilty of lying to the FBI. The exception would have been that his private phone calls would have remained private.
Am I defending the rights of a dirty Chicago politician to have private phone calls? Yes, I am. Every human has rights and by protecting them from government intrusion, I protect myself. The more government is trained to recognize the displeasure that comes from violating a person's rights, the less likely that violation is to occur. Standing up for the rights of the unpopular Blago, simultaneously is defense for the rights of every other person. Maybe a federal government with less power to punish with impunity would be more judicious in deciding who it brings to court.
There are many out there who feel pushed around by the employees of the federal government. I know because about 30 of them wrote me last week after this "Free Blago" essay was published on LRC. It made me feel sick to read some of their personal accounts of the way government pushes people around and to reflect on how so few people care until they are the ones being pushed around. If you and I care about others today, we are less likely to have to care about ourselves being pushed around by the government tomorrow.
Blagojevich should sue the ineffective federal prosecutor for going out of his way to defame him. By standing up for his own rights, Blago will be standing up for the rights of others as well. The smoking gun of the trial will be some late night chuckle between a Bush appointee and an Obama appointee where one tells the other "Well, if we don't convict him, at least his name will be too dirty for him to ever hold a decent job again." That won't be the good part of the trial though. The good part of the trial will be digging around to find that comment.
The main reason I'd like to see Blagojevich sue the federal government is because there's a chance he might end up with a judge who will permit him to conduct wide-ranging discovery.
Many civil cases begin as a theory; then the judge tells the defense to give the plaintiff all the information he or she needs on specific issues. That's a way that a plaintiff can find additional evidence to support his or her theory. This process is called discovery.
In discovery, I'd like to see Blago go into the details of who decided that he'd get visited from the FBI at 6:15 a.m. instead of 9 a.m.? Who decided to bring Blago's brother Robert Blagojevich into the trial as a bargaining chip? How were the dirty tricks planned and who was behind the planning of those dirty tricks? Who in Mayor Daley's circle knew before the fact that Blago would be arrested? Who in State Representative Madigan's circle kept an eye on the case and was there whenever a little influence was needed to keep secrets buried? What role did Mike Madigan's daughter, the Illinois Attorney General, Lisa Madigan play in all of this? When was Madigan responsible for pulling strings in this case? How did prosecutors decide that Congressman Jesse Jackson Jr. would go free? Who decided that Jackson's Indian (dots, not feathers) powerbrokers would go free? What was Obama's role in this trial and what level of control did the White House have over the content of the arguments and the direction of the case? What made Obama so confident that he should negotiate with Blago about the Senate seat that he had occupied? Had he done similar backroom deals with him before? What kind of culture existed among these other men that allowed Blagojevich to feel comfortable bargaining over a Senate seat? I'd love to see some of those unanswered questions answered publicly, on the record, and under oath.
But, of course, that won't happen. No, because Blagojevich did exactly what he was supposed to do. He didn't sell out Daley, he didn't sell out Madigan, he didn't sell out his father-in-law, and most importantly he didn't sell out Obama. Chicago Tribune columnist John Kass put it quite well in an article chronicling who the winners were in Blago's (a.k.a. "Dead Meat" in Kass's parlance) decision to not put on a defense. Below is an excerpt from that article:
President Barack Obama
Big winner. Picture the leader of the free world, walking the family dog, Bo, on the White House lawn, the plastic bag in the pocket, like some perfect TV dad.
He hears the news that Blagojevich has rested his case and won’t testify or call any witnesses.
And that’s when – in my purely fictional mental tableau of the president waiting for Bo to do business on the lawn – Obama fishes into his pocket for a smoke and lights up.
Our president takes a big drag, exhales with a satisfied sigh. Ahhhhh.
Why is our president satisfied?
Because with Blago cutting short his defense, Rahm Emanuel, Obama’s chief of staff, won’t be called as a defense witness to talk about how the Obama White House transcended the old broken politics of the past by haggling with Blago over the Obama Senate seat.
As a lawyer, Obama would know that without a defense case, there’s no way that the president’s old real estate fairy, Tony Rezko, would come up as a prosecution rebuttal witness.
“My man,” he says, thinking of Dead Meat, as he looks to the west, toward Chicago, blowing smoke through that famous smile.
Then he and Rahm enjoy some celebratory mojitos in the Rose Garden and toast Blago again.
Chicago's political class is thrilled by the Blago verdict. Not because Blago got off with a conviction on only one count, but because Blago got convicted. That means everyone can look back at the trial to say that justice had really been done and can state far and wide: "Chicago has been cleaned up by President Obama, who always had a feeling that there were dirty deals going down among the other Chicago politicians." With the results of the trial, Chicago's political class has been reminded that they have the power to lie and cheat with impunity, while scapegoats get jail time. This is exactly the kind of federal government they want – the kind that selectively applies the laws. Are you an influential Chicago politician? Well, at least until you start to fall from grace, you can be assured impunity.
I would love to see Blagojevich sue the government. Seldom do you hear truthful statements from the government. Seldom do people speak truthful statements about how our government functions. Once in a while little bits and pieces can be caught that accurately depict the way government works. In a courtroom, those bits and pieces tend to be more common. The journalists (read stenographers) who are present in court won't pass along enough of the good stuff to their readers, but if you happen to be in a courtroom, especially when a politician, a mobster, or an influence peddler takes the stand, you are treated to some real pearls of wisdom on how our system works. In my dreams Blagojevich sues and Richard Daley, Mike Madigan, Rahm Emmanuel, and Barack Obama end up getting dragged into court to take the stand. Wouldn't that be something, a trial where some of the most powerful politicians in Chicago and in the U.S. are taken into court and forced to talk about their execution of their official duties under oath. In a freer country, it wouldn't just be a dream.