Link to Original Story

Blagojevich, Guilty on 1 of 24 Counts, Faces Retrial

By MONICA DAVEY and SUSAN SAULNY

CHICAGO — Prosecutors here once said that the conduct of Rod R. Blagojevich, the former governor of Illinois, was so despicable it would make Abraham Lincoln “roll over in his grave,” but 12 jurors in the federal corruption case against him were apparently not all so certain.

After deliberating for 14 days, the jury found Mr. Blagojevich guilty of a single criminal count — making false statements to the F.B.I., which carries a maximum sentence of five years in prison, one of the least severe penalties in the charges against him.

The jurors also said they could not reach a unanimous verdict on 23 of the 24 counts against him, including an accusation that he had tried to sell an appointment to fill the Senate seat once held by President Obama. On that count, one juror said, the group was split 11 to 1 in favor of convicting him.

Prosecutors immediately announced plans for a retrial, but the outcome was seen as something of a victory, at least for now, for Mr. Blagojevich, a Democrat and lifelong politician from this city, who had always proclaimed his innocence and did so again as he left court.

“We have a prosecutor who has wasted millions and wants to keep spending money to persecute me,” Mr. Blagojevich told a swarm of reporters in the lobby of the courthouse after the judge declared a mistrial on the bulk of charges against him, including racketeering, wire fraud, bribery and extortion conspiracy.

Inside the courtroom, as the jurors filed in to deliver their findings, Mr. Blagojevich clasped his hands together so tightly that the veins on the back of his hands bulged, and his wife, Patti, waited with her eyes closed at times, exhaling deep breaths.

As the false statements conviction was read aloud, Mr. Blagojevich shook his head. He later said he was innocent of lying to federal agents, too, and would soon appeal.

During an interview with agents, Mr. Blagojevich once said that he did not keep track of or want to know who was contributing to his campaign or how much was being given — comments jurors found to be a lie.

As for the more serious counts against Mr. Blagojevich, the jurors, who had seemed during the trial to be a particularly attentive, studious bunch, had trouble right from the start of their deliberations in reaching much agreement, said one juror, Erik Sarnello.

The group was split 11 to 1, he said, in favor of convicting Mr. Blagojevich on charges that he tried to trade or sell the Senate seat, but was divided in various ways at various moments on the rest of the counts. On some of the charges, said Mr. Sarnello, who is 21 and a student, the jury was divided evenly. “We were all over the place,” he said.

Mr. Sarnello said that he favored convicting Mr. Blagojevich on most counts, but that others raised a variety of concerns about whether he could be found guilty beyond a reasonable doubt.

Some of the jurors suggested that Mr. Blagojevich and his aides had been “just doing a lot of talking,” he said, but not actually committing crimes, while others felt that the government was too eager to “take him down,” or that his behavior might not be all that different from that of other politicians. Others expressed concern that some witnesses who testified against him had plea agreements or other deals with the government, deals these jurors said made their testimony suspect.

“Everybody in that room wanted to get the job done, but we came to the realization that it just wasn’t going to happen,” Mr. Sarnello said. “Some people just said they wanted clear-cut evidence — something clearer than they already had.”

After nearly two months of testimony and several weeks of deliberation, the overall result here was seen as a significant setback for federal authorities, who arrested Mr. Blagojevich almost two years ago to stop what they described unambiguously as “a political corruption crime spree.”

Patrick J. Fitzgerald, the United States attorney, declined to answer questions, but he gave a brief statement calling for respect for the jurors and their service, then added, “We’re about to get ready for a retrial.”

A spokesman for Mr. Fitzgerald said he could not comment on the cost of the prosecution, an effort that had spanned several years.

In broad terms, prosecutors had accused Mr. Blagojevich of turning his state office into a criminal enterprise to benefit himself, citing what they said were brazen efforts to get political contributions in exchange for everything from legislation to help a local pediatric hospital, to state money for a school, to a law to benefit the horse track industry to, most infamously, an appointment to fill Mr. Obama’s Senate seat.

The trial featured prosecution testimony from Mr. Blagojevich’s former chiefs of staff (some of whom pleaded guilty to charges in the case) as well as numerous secretly recorded telephone calls in which Mr. Blagojevich or his aides seemed to seek financial benefits for official state actions.

Still, the trial had also exposed two notions that seemed to favor the defense: Mr. Blagojevich rarely managed to succeed in getting whatever financial benefits he might have sought, and much of what he did might also be viewed by some as common, if especially ugly, political deal making.

Jurors were unable to reach a verdict in any of four counts against Mr. Blagojevich’s older brother, Robert, who had briefly served as a fund-raiser for the former governor and who left the courthouse Tuesday saying, as he has all along, that he did nothing wrong and intends to prove that in the next trial.

For months, the events surrounding the former governor mortified Illinois, a state that is hardly naïve about politics, setting off a wave of commissions and committees with proposals to reform state ethics rules, campaign finance laws and policies on making state business open to public view.

Some political leaders and others pointed to Mr. Blagojevich’s conviction for false statements as a satisfactory conclusion to the case, and a repudiation of bad government. But others, including some most involved in the state’s reform efforts, said Tuesday evening that they were disheartened by the unresolved 23 counts and concerned about what the lessons in any of this might now be.

“It’s been a painful trial,” said Cindi Canary, director of the Illinois Campaign for Political Reform. “It’s been very distracting in a state that’s up to its eyeballs with problems.”

She went on: “The big question now is, if we draw up 12 new people, will they find something different?”

Andy Shaw, the executive director of the Better Government Association, a local watchdog group, said he had not changed his view of the former governor.

“He and his cabal of thugs hijacked our government,” Mr. Shaw said. “It was disgraceful and reprehensible. But, at least to these 12 jurors, not illegal.”

Mr. Blagojevich, 53, was the fourth Illinois governor in recent memory to face the possibility of prison. It seemed a remarkable shift for a politician who won his first race for governor, in 2002, by portraying himself as a reformer who would clean up state politics after his predecessor, George Ryan, a Republican, was convicted of corruption and sent to federal prison.

On Dec. 9, 2008, Governor Blagojevich, then in his second term, was awoken around dawn at his Chicago home and arrested. Government agents had secretly recorded about 500 hours of telephone calls with Mr. Blagojevich and his advisers, and a portion of those recordings became a crucial element of the prosecution’s case.

As a whole, the recordings painted Mr. Blagojevich as an insecure, isolated man who was jealous of Mr. Obama, obsessed with schemes for getting out of being governor as quickly as possible, worried about deteriorating family finances, who rarely went to his office and cursed a lot.

Leading up to his trial, the former governor transformed from someone who once imagined himself as a serious contender for president to something of a national spectacle, appearing on the television show “Celebrity Apprentice,” impersonating Elvis Presley (a hero of his), writing a memoir, hosting a weekly radio talk show and even turning down an offer to play for a minor league baseball team in his home state, the Joliet JackHammers.

Mr. Blagojevich pleaded not guilty and often said that he would testify at his trial. In the end, he did not. The defense presented no witnesses.

The prospect of a new trial on the 23 undecided counts, just as the fall political season arrives, was sure to alarm Democrats here, who are locked in tight races for governor (the party’s nominee is Pat Quinn, the former lieutenant governor who replaced Mr. Blagojevich after he was impeached) and for the Senate seat that Mr. Blagojevich was accused of trying to peddle (Alexi Giannoulias, the Democratic nominee, was subpoenaed but did not testify at the trial).

A new trial also threatens once more to draw in officials from the White House and leaders in Washington, mainly because of the charges tied to the Senate seat that Mr. Blagojevich was required by law to fill when Mr. Obama was elected president.

Emma Graves Fitzsimmons contributed reporting.

From the New York Times...

Link to Original Story

Op-Ed Contributor
Blagojevich and Legal Bribery

By SCOTT TUROW

Chicago

In May 1980, during the height of the movement to add an Equal Rights Amendment for women to the Constitution, an activist named Wanda Brandstetter delivered a note to Nord Swanstrom, an Illinois state representative. “Mr. Swanstrom,” it said, “the offer to help in your election and $1,000 for your campaign for pro-E.R.A. vote.” Things did not go as Ms. Brandstetter hoped. The measure was never ratified by the Legislature, while her offer of $1,000 lead directly to her conviction for bribery in the Illinois courts.

Since Ms. Brandstetter’s case, it has been clear in Illinois (and eventually in the federal courts too) that, notwithstanding the First Amendment protections the Supreme Court has applied to political contributions, prosecutions for bribery and extortion may be brought when a donation is tied directly to a specific act by an elected official.

So, people are right to wonder how the jury in the trial of Rod Blagojevich, the former governor of Illinois, could possibly be unable to come up with a verdict on any bribery-related charges, finding Mr. Blagojevich guilty only of lying to federal agents when he characterized himself in 2005 as uninvolved in political fundraising.

After all, government wiretaps revealed Mr. Blagojevich threatening not to sign legislation beneficial to the harness racing industry unless he received a $100,000 campaign donation from one race track executive. He even threatened to hold up an increase in state Medicaid reimbursements for pediatric cases until the chief executive of Illinois’s leading children’s hospital contributed $50,000.

Yet the unwillingness of one or more jurors to convict Mr. Blagojevich of anything but bare-faced lying makes some sense. I suspect the jury’s indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

For example, in June 2009, the court decided a case involving Massey Coal and its chief executive, Joe Blankenship. (Coincidentally, Massey was the operator of a coal mine in West Virginia that exploded in April, killing 29 miners.) In 2004, after Massey had lost a $50-million fraud verdict to a rival coal company, Mr. Blankenship spent $3 million supporting the successful candidacy of Brent Benjamin to the West Virginia Supreme Court of Appeals, where Massey’s challenge of the fraud verdict was going to be heard.

Although Mr. Blankenship’s spending eclipsed the contributions of all of Judge Benjamin’s other donors put together, the judge subsequently refused to remove himself from Massey’s appeal. Unsurprisingly, the court voted to overturn the verdict against Massey, with Judge Benjamin providing the deciding vote.

The case eventually came to the United States Supreme Court, which by a 5-to-4 vote decided Justice Benjamin should have recused himself because of the “disproportionate” influence Mr. Blankenship’s money had in the election. Nonetheless, the court pointedly refused to require the same from other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them.

Moreover, the court appeared persuaded that nothing criminal had occurred, even though its ruling concluded that it was “reasonably foreseeable” at the time that Mr. Benjamin would decide the Massey case and that Mr. Blankenship had a “vested interest” when he spent the money. Given that logic, who can blame Mr. Blagojevich — or Wanda Brandstetter — for asking, “Why me?”

Despite such cases, which demonstrate the obvious perils when public officials become the beneficiaries of campaign largesse from those with business before them, the Supreme Court last January said that the First Amendment required erasing the decades-old federal ban on independent campaign spending by corporations and unions on the eve of elections.

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

The future of other campaign finance restrictions looks bleak. Thirty-six years ago, when the Supreme Court first declared in Buckley v. Valeo that the First Amendment protected election spending, it nonetheless approved contribution limits “to prevent ... the appearance of corruption.” In Citizens United, the Roberts Court gave short shrift to any concern about appearances. Limits on direct contributions to candidates appear likely to be the next campaign safeguard to fall.

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court’s elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying. Only those as naive as Wanda Brandstetter or as crass and ham-handed as Rod Blagojevich find themselves subject to prosecution, while others wise enough to say less out loud find snug protection in the First Amendment, no matter how bald their desire to influence government actions.

With all respect to Wanda Brandstetter, the Constitutional amendment this nation most urgently requires is one that reverses the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?