7th Circuit Vacates Some Blagojevich Convictions

(CN) - The Seventh Circuit on Tuesday vacated some convictions of former Illinois Gov. Rod Blagojevich, potentially setting the stage for a retrial on those charges.

Blagojevich was arrested on numerous federal charges in December 2008, and was impeached and removed from office the following month.

He was convicted on 18 charges after two jury trials and sentenced to 168 months in prison for corrupt attempted extortion, corrupt solicitation of funds, wire fraud and lying to federal investigators.

A panel of judges vacated five of the convictions Tuesday, not for a lack of evidence, but because of jury instructions regarding accusations that Blagojevich asked then President-elect Barack Obama for a favor in exchange for naming a successor of Obama's choosing for his vacated senate seat.

According to court documents, Blagojevich asked for an appointment to the cabinet or for the president-elect to persuade a foundation to hire him at a substantial salary after his term as Governor ended, or find someone to donate $10 million and up to a new "social welfare" organization that he would control.

The result was a classic standoff. Obama would not make a deal and Blagojevich would not appoint Jarrett without compensation.

"They're not willing to give me anything except appreciation. Fuck them," Blagojevich is supposed to have said.

U.S. Circuit Court Judge Frank H. Easterbrook wrote: "A jury could have found that Blagojevich asked the President-elect for a private-sector job or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment."

Drawing a clear line between asking for private money and a government appointment, the panel concluded that "governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective without surrendering something about which he cares less, but the other politician cares more strongly."

The panel - which also included U.S. Circuit Judges Michael Stephen Kanne and Ilana Rovner - also reminded the prosecution that it had failed to provide any examples of convictions on political "logrolling" charges.

As for the wire fraud conviction, the panel roundly criticized the prosecution's argument that Blagojevich denied the public of its right to his "honest services" by bargaining for a cabinet position.

Easterbrook wrote: "To call this an honest-services fraud supposes an extreme version of truth in politics, in which a politician commits a felony unless the ostensible reason for an official act also is the real one. So if a Governor appoints someone to a public commission and proclaims the appointee 'the best person for the job,' while the real reason is that some state legislator had asked for a friend's appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job."

He concluded: "If the prosecutor is right that a public job counts as a private benefit, then the benefit to a politician from improved chances of election to a paying job such as Governor-or a better prospect of a lucrative career as a lobbyist after leaving office-also would be a private benefit, and we would be back to the proposition that all logrolling is criminal. Even a politician who asks another politician for favors only because he sincerely believes that these favors assist his constituents could be condemned as a felon, because grateful constituents make their gratitude known by votes or post-office employment."

Blagojevich argued that he was entitled to acquittal on all charges because he "believed in good faith that his conduct was lawful," but the panel disagreed.

Easterbrook wrote: "He does not deny knowing the rule of McCormick, under which the exchange of an official act for a private benefit is illegal, so ... the 'good faith' argument is just a stalking horse for the contention that the quid pro quo must be stated explicitly and cannot be implied from hints and nudges; [and] we have rejected that contention directly."

In addition to vacating the five counts on which Blagojevich was convicted, the panel vacated his sentence on those counts, and remanded those charges for retrial, adding that "[i]f the prosecutor elects to drop these charges, then the district court should proceed directly to resentencing."

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