As anyone who wasn’t living under a rock in December 2008 is aware, Rod Blagojevich, then-Governor of Illinois, was arrested in that month and charged with committing numerous federal crimes. He was ultimately convicted of 18 of those charges—1 by the jury at his first trial, which was unable to reach a verdict on the remaining charges, and 17 at his second. The case has garnered significant legal debate with many legal commentators, including ZDB’s of counsel attorney Harvey Silverglate, questioning whether he had been singled out for prosecution for political business-as-usual. On July 21, 2015 the Seventh Circuit Court of Appeals issued its decision in the case, upholding the bulk of the convictions, but vacating the guilty verdicts on certain counts because the jury instructions could have allowed the jury to convict without any evidence that Blagojevich did more than engage in ordinarily political deal-making.
The charges that received the most attention in the press are also those which consumed the bulk of the Seventh Circuit’s analysis. After Barack Obama won the presidential election in 2008, Blagojevich, as the Governor of Illinois, was entitled to appoint someone to his vacated Senate seat. As the Seventh Circuit put it, Blagojevich “viewed the opportunity to appoint a new Senator as a bonanza,” and sought favors in return for the appointment from two different groups. First, he approached Obama, suggesting that he would appoint Valerie Jarrett in exchange for an appointment to the Cabinet, for Obama’s assistance in getting a lucrative job at a foundation after his term as Governor, or for a $10 million donation to a new organization he would control. Second, he approached supporters of Jesse Jackson, Jr., and offered to appoint Jackson in exchange for a $1.5 million campaign contribution. The Seventh Circuit had no trouble concluding that this second set of negotiations violated federal law, nor in condemning various other actions that Blagojevich took, unrelated to the Senate seat, as illegal. However, it viewed the evidence regarding Blagojevich’s negotiations regarding Jarrett’s possible nomination differently, concluding that while exchanging the seat for “a private-sector job, or for funds that he could control” would be illegal, a request for a position it the Cabinet in exchange for the appointment would not violate any of the various federal statutes that prosecutors invoked.
The court reasoned that “a proposal to trade one public act for another,” i.e. to trade an appointment to the Senate for Jarrett for an appointment to the Cabinet for Blagojevich, is “a form of logrolling [that] is fundamentally unlike the swap of an official act for private payment.” It refused to describe such “logrolling” as extortion, a bribe, or a fraud. On the contrary, it described “[a] proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate)” as “a common exercise in logrolling.” When generally discussing such “logrolling,” it wrote, “[g]overnance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.” It rejected the prosecution’s suggestions that Blagojevich’s potential private gain from a Cabinet appointment changed the nature of the proposed transaction.
On the one hand, the fact that the bulk of the decision is devoted to a defense of trades of political favors and to a rebuttal of the theory that such trades could be criminal should give politicians currently engaged in swapping favors some comfort. On the other, it seems extremely likely that the court’s bright lines between “public” and “private” gain are far blurrier in political practice. Even in this case, it feels strange that Blagojevich can be convicted of a federal felony for offering to make a political appointment in exchange for a job with a private foundation but not for making the exact same offer in exchange for a government job, where his motivations and the ultimate effect of his conduct on the future of Obama’s Senate seat were surely identical.