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Is It a Crime To Trade a Senatorial Appointment Decision for a Cabinet Job?

The charges against Illinois Governor Rod Blagojevich are extremely serious, and much of them allege garden variety corruption, albeit on a massive scale. But I wonder whether one of the items should indeed form the basis for a corruption prosecution:

Rod Blagojevich has been intercepted conspiring to trade [his decision to appoint someone to] the senate seat [vacated by the President-elect] for particular positions that the President-elect has the power to appoint (e.g. the Secretary of Health and Human Services).

It's true that a cabinet position has a salary attached to it, which I believe is somewhat larger than that of the Governor of Illinois. And I agree that trading a decision to appoint someone a Senator for a pot of money is classic criminal bribery.

But my sense is that political deals of the "I appoint your political ally to X and you appoint me to Y" variety are pretty commonplace, though perhaps done with more subtlety than seemed to be contemplated here. Should these deals indeed be treated as criminal bribery? Have they generally been so treated? What if the deal didn't involve appointment-for-appointment swaps but vote-for-vote swaps or vote-for-appointment swaps — e.g., "if you vote the way I want you to vote, I'll vote the way you want me to vote" or "if you vote the way I want you to vote, I, the Speaker of the House, will make sure that you're appointed to the committee chairmanship you always wanted" or "if you solidly support me during this Congress, I'll appoint you to the Cabinet"?

Here this proposed deal seems part of a broader pattern of corruption (though this also means that the prosecution would likely do just fine if they had excluded the deal, and focused on the prospect of trading the appointment for a private-sector position). But the government's theory, I take it, would apparently treat such a deal as a federal crime — assuming the federal jurisdictional requirements are met — even if it were a standalone deal by an otherwise uncorrupt official. So that, I think, makes it worth considering how the law should treat these sorts of deals involving political appointments.

RPT (mail):
Any sense how the allegations here (not the surrounding circumstances) compares to the Siegelman-Scrushy case?
12.9.2008 2:33pm
ShelbyC:

"I appoint your political ally to X and you appoint me to Y" variety are pretty commonplace


Maybe, but it's still a crime. IANAL, but I would imaging making the appointment for any private consideration or purpose, other than for the good of the people of Illinois, would be a crime.
12.9.2008 2:38pm
Crunchy Frog:
I'm sure these types of deals are conducted daily in private, with a wink and a nod, and no amount of scrutiny or oversight is ever going to change things.

Blagojevich's problem is that he was arrogant enough to hold a public auction for the seat.
12.9.2008 2:39pm
Brad Ford:
What about, if you give my friend, Marc Rich, a presidential pardon, I will donate $X million to your presidential library?

Seriously, it is a classic bribe. The worst part of the complaint whas his statement about his priorities for filling the seat. Apparently, the concept of considering the best interest of Illinois was not relevant to him.
12.9.2008 2:43pm
Thomas_Holsinger:
There's probably a RICO angle to this. Solicitation of bribes and/or attempted extortion are predicate offenses.
12.9.2008 2:50pm
RichardR (mail):
I don't know that the Senate-appointment for Cabinet-appointment swap is itself meant to be seen as criminal. Rather, I think it is meant to support the assertions related to the allegations of clearly illegal schemes, such as Blagojevich taking a phony union job with an inflated salary or selling the job to, e.g., Senate Candidate 5.
12.9.2008 2:53pm
J Buckley (mail) (www):
Is It a Crime To Trade a Senatorial Appointment Decision for a Cabinet Job?

I respectfully ask why this is even a question. There is a great deal of sentiment (at least, in my circles there is) that the law and basic morality should be in alignment, and yet the claim here is that the law is blind to the Ill. Governor's actions?

Perhaps this shows why the law profession is held in such low regard these days.
12.9.2008 3:02pm
Careless:

Well, if it's a crime to love one's country, then I guess I'm guilty as charged. And, if it's a crime to steal a trillion dollars and hand it over to communist Cuba, then I guess I'm guilty of that, too. And, if it's a crime to bribe a jury, God help me, I'll soon be guilty of that as well!
12.9.2008 3:03pm
Asher (mail):
Certainly votes for confirmation of appointees are traded for appointments all the time. I mean, Senator X votes for President Y's Judge Z if President Y will appoint Senator X's friend/ally, Crony Q, to some job. Of course that's a little more indirect, but there are similarities.
12.9.2008 3:09pm
NowMDJD (mail):
Say A wants a federal office (Secretary of X) and offers Governor B $100,000 if B can get it. B goes to President O and offers to appoint P to a vacant senate seat if the president appoints B as Secretary of X.

We now have corruption as well as political trading, and President O is not involved in the corruption, nor does he necessarily know about it.

We'll see what actually took place as the story unfolds, but this is an example of how this sort of horse trading can be tied up with corrupt practices.
12.9.2008 3:10pm
Henri Le Compte (mail):
Is it my imagination, or is Fitzmas coming early this year? (Bwhaaaaaaa!)
12.9.2008 3:10pm
Zubon (www):
Joe Buckley: Yes, there is a claim that things can be bad without being illegal. If you hold lawyers in low regard for things that the legislature has not made illegal, that says more about you than the profession.

See also Orin Kerr's ongoing work with the Lori Drew case. See also "eating the last of the Cracklin' Oat Bran." (Do they even sell that any more?)
12.9.2008 3:11pm
Paul Milligan (mail):
Absolutely it is. It is flat out 'quid pro quo' trading an appointment for cash ( the salary of the top job ), no different than an envelope of Franklins.

The scum is going down. Tha anti-gun scum, I might add. Now - the top canary singing about him is Rezko - one of Brobama's top bundlers. Who set up a sweetheart real estate deal for / with Brobama.

Plus, Brobama 'came up' through the Chicago Machine - Daly, Blago, Rezko, etc. The thing here is - can they prove the connection ? There is NO REASONABLE THEORY under which Brobama wasn't involved heavily in the Chicago corruption - that is the ONLY way ones career advances at light-speed like his did in that town, and that state.

Fitzgerald's term expires when Brobama takes over - I wonder if Brobama will have the balls to re-appoint him, or to appoint him 'SPecial Prosecutor' with mandate to investgate EVERYTHING about the Chicago Machine, including Brobama's own role in it ???

Or will he use his Constitutional power to NOT re-appoint ( in effect fire ) the US AG Fitzgerald, and replace him with someone who won't be as much of a bulldog ?

We'll find out in January.

As to Brobama - he 'came up' at lightening speed through the Chicago Machine, his buddies are Daly's and Brogo's buddies. They are all going down. Brobama's rise to fame came from happily swimming in that sewer, playing their game ( getting everyone on the ticket except himself thrown off the ticket in an election, etc ) - you DON'T DO THAT IN CHICAGO is Mayor Daly don't say so.

Pop quiz - when you swim in a septic tank for years - WHAT DO YOU SMELL LIKE THE NEXT DAY ????

Congratulations, America - for the goal of 'easing some kind of perceived social conciousness wound' by putting a totally untested and unqualified and unexperienced black man in the White House merely because he happens to be black, we now have at least four years to come of the most pre-inaugurally tainted and suspect President in American History.

Ths chances of Brobama's having risen as he did at light-speed through the Chicago Machine, and the Illinois Machine ( the former governor is in prison, this one is going to prison, 2 others were indicted, etc etc )without being PART of that machine and using it, are nill. Zero. None.

Now he is going to be President. The Chosen One. The ObaMessiah.

We are truly, as the FBI indictment this AM says, 'F****d'.
12.9.2008 3:14pm
MQuinn:
J Buckley,

I disagree with your post, and I suggest that Professor Volokh's post is exactly what is so great about the legal profession. Most would agree with you that trading an appointment for a cabinet job "seems wrong" and "seems immoral." However, that's not enough. We must intellectually dig deeper than appearances and ask whether it in fact is illegal and, if not, whether it rationally should be illegal. By way of example, everyone agrees that thoughts of murder are immoral and should not be entertained. By your logic, they should therefore be illegal. However, fortunately, they are not, and we are free to think what we wish.
12.9.2008 3:15pm
Oren:

There is a great deal of sentiment (at least, in my circles there is) that the law and basic morality should be in alignment

Absolutely not. The law, as a quasi-deterministic affair, cannot possibly capture the nuance and depth of morality. There will always be immoral conduct that is not illegal because the system of laws is not flexible enough to cover all such cases (alternatively, if it is flexible enough then nearly anyone that the prosecutor/jury don't like can be convicted of something).
12.9.2008 3:16pm
ShelbyC:

If you hold lawyers in low regard for things that the legislature has not made illegal, that says more about you than the profession.


Why? We can't even hold y'all in low regard if you don't do anything illegal. Geez.

Way to prove his point.
12.9.2008 3:18pm
Bob from Ohio (mail):
Careless, very apprpriate.

It was even made in Springfield.
12.9.2008 3:20pm
josh:
You have to realize that Fitzgerald prosecuted Gov. Ryan not for bribery or receiving personal benefits, but for "depriving the public of honest services." I haven't read the Baldo indictment, but I assume it could be premised on that charge.

For some good criticism of the vagueness of the crime of "depriving the public of honest services" (which the 7th Circuit has rejected in affirming Ryan's conviction and the Supreme Court refused to hear), see Northwestern (former U of C) law prof Albert Alschuler here: http://uchicagolaw.typepad.com /faculty/2005/10/the_intangible_.html
12.9.2008 3:21pm
Neo (mail):
Illinois Governor Rod Blagojevich should be put in stocks on the steps of the state Capitol for a period no less that 72 hours.

I'll bring the rotten tomatoes.
12.9.2008 3:21pm
josh:
I was wrong. Looked at the indictment. It appears to be two counts -- one straight up mail/wire fraud, and the second, soliciting a thing of value (presumably bribery).
12.9.2008 3:24pm
OrinKerr:
J Buckley,

You write:
There is a great deal of sentiment (at least, in my circles there is) that the law and basic morality should be in alignment, and yet the claim here is that the law is blind to the Ill. Governor's actions?
I think you are confusing "is" and "should". The sentiment, which I share, is that law and basic morality should be in alignment. But "the law" is Congress's statutes, and you can't charge someone with a crime on the basis of conduct that is not yet criminal. So whether or not the law "should" be in alignment, a prosecution has to consider whether they actually "are" in alignment.

You could imagine living in a country where judges interpreted the criminal law to be whatever it *should* be, but that's hard to square with the rule of law: In fact, that was the basic legal theory of Nazi Germany and Soviet Russia, not exactly good examples.
12.9.2008 3:26pm
MQuinn:
Paul Milligan,

You just wrote a 12 paragraph post that attempted to lay down an indictment upon Obama yet only managed to repeat (over and over and over and over and over again) that Obama must be corrupt because he is (a) young and (b) from Illinois. Who are you trying to convince?
12.9.2008 3:26pm
alkali (mail):
Most would agree with you that trading an appointment for a cabinet job "seems wrong" and "seems immoral."

I'm not sure that I even agree with that. Arguably if a governor thought he/she could benefit her constituents by making such a deal it would be the right thing to do. The fact that the cabinet secretary pays a salary doesn't seem dispositive; the governorship pays a comparable salary, and you'd have to give up that to take the deal.

I agree with RichardR that the complaint does not rest on a theory that such a deal would necessarily be illegal.
12.9.2008 3:27pm
Conrad Bibby (mail):
What clearly puts this into the realm of illegality is that fact that Blago was trading an official act for something of personal pecuniary value (a high paying job). Moreover, the intent is clear: they have him on tape explaining how the Senate appointment was something very valuable and that he had no intention of letting it go without getting something of value in return. He also made it clear in these taped statements that the consideration he was looking to get in exchange for the Senate appointment would be money (in the form of a job and/or campaign contributions) and possibly help with his personal legal problems.
12.9.2008 3:28pm
Pyrrhus (mail) (www):
I've been wondering this exact thing. Very curious to find if this charge is novel or a confirmed illegal practive.

Seem like there are some straight forward reasons that we might want it to be illegal. Blagojevich selling the position for money and selling it for a position appointment with a salary have the same end (providing him a living), and the same effect (Blagojevich neglects consideration of who would simply be best for the office).

I guess the problem of banning this sort of thing is that it potentially limits the kind of political flexibility you mention above, that allows people to maximize their political utility. That is, there could be a situation where office swapping yielded greater political utility as well as some personal utility for the officeholders involved.
12.9.2008 3:30pm
Felix Sulla:
Paul Milligan: In fact, I think Obama's rise through the Illinois machine was so fast, it was FASTER than the speed of light! Which means Obama not only violated Illinois and Federal law: he violated the laws of SPACE AND TIME ITSELF! Off with his head, this is all the proof we need of his alliance with Satan!
12.9.2008 3:31pm
James Gibson (mail):
My fellow workers and I have been just laughing beyond belief over this whole thing. Some staff members initially couldn't accept this and suggested it was a practical joke. Its so bad you couldn't sell this to Hollywood, its too unbelievable.

By the way did anyone note that the governor, as part of his release on bond, had to surrender his passport and his firearm owner identification. Implement strict gun control and only the criminals will own guns, including the criminals that mandated the strict gun control.
12.9.2008 3:32pm
Oren:
Orin, are you really conceding even the possibility of bringing the law and morality into alignment. It seems to me impossible on its face (the former being logical and the latter being abstract). The best we can do is an approximation of morality into the rules of law (and there is much to be said for the common-law tradition of feedback).

Perhaps others don't share my philosophical pessimism on this particular topic.
12.9.2008 3:33pm
Bama 1L:
Maybe, but it's still a crime. IANAL, but I would imaging making the appointment for any private consideration or purpose, other than for the good of the people of Illinois, would be a crime.

This is a good statement to think through.

We certainly want chief executives to make good appointments. We might even say they have a duty to appoint based on merit. But we probably do not want judges enforcing that duty.

If you carry through with this principle, you allow judges to second-guess every single appointment. What standard would they apply? What would be the rule? No friends? No friends of friends? Best candidate only? If we wanted a merit system based on blind examinations, we could certainly do that. I think, though, there may be a reason we let chief executives appoint principal officers.

Judicial scrutiny of appointments is particularly redundant if (as is the case for at least one half of this transaction) the legislature gets to weigh in on the appointment.
12.9.2008 3:34pm
DiversityHire:
done with more subtlety than seemed to be contemplated here

There's no subtlety or nuance in the Norris Division!

Blagojevich sounds like a bad parody of a corrupt politician from Simon and Simon or Riptide. Here he's even wearing the classic primetime crime drama bad-guy ensemble as he compares his situation to Nixon and Watergate. How did this guy get elected?
12.9.2008 3:34pm
Paul Milligan (mail):
McQuinn - first , your intentional gross mischaracterization of my post tells me everything I need to know about YOUR post, and you. Obviously, you have drunk the Brobama koolaid, and drunk long and deeply.

Second, it was my understanding that this is a blog for people to express opinions of various topics presented. I expressed mine. Don't like it ? Don't read it.
12.9.2008 3:36pm
DiversityHire:
Paul Milligan, what are you intending to convey by identifying President-Elect Obama as "brobama"? I think I know, but I'm not sure.
12.9.2008 3:39pm
A. Zarkov (mail):
I suspect governors of Illinois have trouble even recognizing when something is corrupt. For example Otto Kerner Jr. who signed off on the famous Kerner Commission Report. That's the report that blamed white people for the black riots of the 1960s, but I digress. According to Wikipedia, Kerner received a bribe in the form of stock in a racetrack to provide choice racing dates and to get two expressway exits for Arlington Park racetrack. Track manager Marge Lindheimer, thought the bribes were ordinary business expenses in Illinois, and took a federal tax deduction. She really should have consulted a tax attorney on that one. Bad move for her and Otto. I think this tells us something about Illinois pols. They are so steeped in corruption, they think it's normal. Or as the saying goes-- "A fish don't know he's wet."
12.9.2008 3:41pm
resh (mail):
Does anyone know if the senate has to actually accept the governor's pick? I thought there was some provision that allowed them to negate it.

In a note of jest, if he makes his selection from jail, could it be the warden?
12.9.2008 3:51pm
Felix Sulla:

I think this tells us something about Illinois pols. They are so steeped in corruption, they think it's normal. Or as the saying goes-- "A fish don't know he's wet."
Right. Kerner took a bribe. Kerner was an Illinois 'pol.' Ergo: all Illinois 'pols' are corrupt. Sorry Zarkov, you can apply this reasoning to any big city or political establishment. And probably most of the small ones too.
12.9.2008 3:52pm
Sarcastro (www):
[One thing I do find interesting is that while everyone agrees Chicago is a hotbed of corruption, it doesn't seem to be much worse off than many other cities.

This could mean any or all of the following:

a) Chicago could be even better than it is, if it could shake off the cycle of corruption

b) Most other cities have serious corruption problems as well. Chicago is special in it's EGO problem that makes it's politicians more blatant]

c) corruption doesn't actually effect governance]
12.9.2008 3:55pm
ShelbyC:

We certainly want chief executives to make good appointments. We might even say they have a duty to appoint based on merit. But we probably do not want judges enforcing that duty.

If you carry through with this principle, you allow judges to second-guess every single appointment. What standard would they apply? What would be the rule? No friends? No friends of friends? Best candidate only? If we wanted a merit system based on blind examinations, we could certainly do that. I think, though, there may be a reason we let chief executives appoint principal officers.



Not Judges. Juries. And this standard is public purpose vs. private purpose. I believe this is the existing standard, I'm not proposing a principle. You're lernin the law, so maybe you know the fancy wordin' and such, but I believe it boils down to, "Use your office for personal gain, go to jail." Now mabye the scenarios don't leave enough evidence to convict, but I beleive it's still a crime.
12.9.2008 3:57pm
MQuinn:
Paul Milligan,

Please explain how my post mischaracterized your position? Correct me if I am wrong, but you are proffering that Obama is corrupt because he shot up quickly within Illinois politics. That is 100% the extent of your argument!! Did you offer facts to support your position? No. Did you offer circumstantial evidence that rises above "Obama is young and came from Illinois"? No. Don't lash out at me just because you believe Obama is corrupt yet you lack substantive evidence to prove his guilt.

Also, how is it that my taking issue with your weak argument means that I have drank the Obama kool aid? Is anyone that voted for Obama brain washed? That appears to be the extent of your "argument." Given the over-the-top wording of your post, I suggest that you are the one with an irrational, purely-emotional position. Here's a tip: don't worry about my political beliefs, instead you should worry about the mile-wide hole that exists in your argument.

Finally, what aspect of my post suggested that you shouldn't post here? I merely asked who you are trying to convince w/ your over-the-top language. I thought this was perfectly clear, but apparently not, so I will spell it out for you -- your hate-filled verbiage convinces no one; instead, it only riles up those fringe persons who agree with you.
12.9.2008 4:01pm
Bruce Wilder (www):
What's the line between political horse-trading and log-rolling and bribery (or intimidation) of a public official?

EV: "my sense is that political deals of the "I appoint your political ally to X and you appoint me to Y" variety are pretty commonplace, though perhaps done with more subtlety than seemed to be contemplated here. Should these deals indeed be treated as criminal bribery?"

Commonplace or not, such a deal could constitute criminal bribery, as a matter of law. Meaning, in the law as in morality, depends on context. In the context of collaboration and cooperation on a political program, such a deal might be excused as an unfortunate shorthand, and not an inducement to act against the public interest.

The prohibition against bribery is one of many, many rules in politics and law-making, aimed at preventing a democratic politics from descending from an orderly contest over public policy for public purposes into a naked usurpation of state power for private purposes.

A cynic might dismiss the discussion of public purposes as mere "subtlety", and, I suppose, politicians might train themselves to cover transactions in boilerplate shibboleths -- sort of like the apocryphal post-Watergate, post-Abscam politicians, who shouted "It would be wrong!" into the middle of phone conversations they feared were being taped. The Governor would have ready defenses, if he asked questions about the merits of proposed candidates, or worried outloud about how this appointment or that would affect environmental policy or educational funding. It is the absence of such high-minded concerns that transforms political-deal-making into bribery, and it is because we fear that politics will deteriorate from public purposes into private transactions trading favors that we prohibit bribery.
12.9.2008 4:02pm
Leland (mail):
I think the primary issue here is intent.

A person can sell stocks all day long and make good profits just before a decline, but if they do so on inside information, then it's a crime.

A politician can trade political favors all day long and make decisions that smell to all other constituents but his own. However, when the politician sells his political power for his own personal gain, then it's a crime.
12.9.2008 4:06pm
AndyInIllinois (mail):
It is sad that the law is so far removed from plain common sense that Eugene and Ron would think alike.
12.9.2008 4:07pm
MCM (mail):
Paul Milligan:

Absolutely it is. It is flat out 'quid pro quo' trading an appointment for cash ( the salary of the top job ), no different than an envelope of Franklins.


The kids these days call them "Benjamins".
12.9.2008 4:07pm
VeritasOmnibus:
I agree, intent is often what separates a criminal act from an innocent act.
12.9.2008 4:09pm
Dave N (mail):
Felix Sulia,

Chicago is more corrupt than most cities; and Illinois is more corrupt than most states.

That said, I do not think President-elect Obama is corrupt in any way, shape or form--though I do believe the Chicago Machine thought it would helpful to promote Obama's political career and that certain corrupt people (Tony Rezco, for example) thought that they could somehow benefit themselves by associating with him.
12.9.2008 4:10pm
VeritasOmnibus:
Isn't Franklin Pierce on the $99 bill, ie "Franklins"?
12.9.2008 4:12pm
Qgambit:
Count one charges that he conspired to defraud the people of Illinois of their right to honest services (18 USC 1341 &1346). The Supreme struck down the honest services theory in McNally (483 US 350) but congress brought it back with 1346 almost immediately after.

As already mentioned, "honest services" is very vague. Was there really no other (more specific) law that he could have charged under?
12.9.2008 4:13pm
VeritasOmnibus:
Will Pres. Bush now pardon Gov. Ryan?
12.9.2008 4:15pm
cirby (mail):

Please explain how my post mischaracterized your position? Correct me if I am wrong, but you are proffering that Obama is corrupt because he shot up quickly within Illinois politics. That is 100% the extent of your argument!!

Well, Milligan might not have put much in his post, but if you've missed the plain fact that Barack Obama is mired deeply in Chicago politics, you've missed a lot. No, he didn't get elected by "staying clean." He got elected - to state and national office - by letting the Chicago machine hold his hand the entire way.

Governor Blagojevich has been a strong supporter of Obama (which is certainly part of the reason he got so mad about being rebuffed in his "favor trade" for the Senatorial appointment), and Obama has publicly supported Blaggy for a long time, too. They have a LOT of supporters in common (Rahm Emmanuel on down), and some of them are even now in the middle of their own little legal hells (Rezko is tied strongly to both). Blagojevich assumed that Obama would play the game, and was shocked when he didn't (probably because someone let Rahm Emanuel or Obama himself know that Blag was under investigation, and to stay away).
12.9.2008 4:17pm
A. Zarkov (mail):
Felix Sulla:

"Right. Kerner took a bribe. Kerner was an Illinois 'pol.' Ergo: all Illinois 'pols' are corrupt. Sorry Zarkov, you can apply this reasoning to any big city or political establishment. And probably most of the small ones too."


Of course many other places have corruption. But Illinois corruption seems to take a "business as usual form" rarely found in other places. It's one thing to take a bag of cash, quite another to take stock, which leaves a clear paper trail. It's one thing to bribe a public official, quite another to think it's so normal that you can take a tax deduction. That was my point, not that corruption was exclusive to Illinois.
12.9.2008 4:21pm
VeritasOmnibus:
"Well, Milligan might not have put much in his post, but if you've missed the plain fact that Barack Obama is mired deeply in Chicago politics, you've missed a lot. No, he didn't get elected by "staying clean." He got elected - to state and national office - by letting the Chicago machine hold his hand the entire way."


And you just put nothing in your post, except allot of adjectives -- Way to make the case.
12.9.2008 4:30pm
PersonFromPorlock:
Qgambit:

As already mentioned, "honest services" is very vague.

But isn't it similar to "due diligence?" Both seem to mean making a required effort and if the courts can determine when 'due diligence' has been done, they should likewise be able to determine when 'honest service' has.
12.9.2008 4:51pm
mwhittlaw (mail):
The 7th Circuit's affirmance (in an opinion by Diane Wood) of George Ryan's conviction -- where it did, indeed, expressly approve the denial-of-honest-services theory of mail fraud -- is at 498 F.3d 666. (I'm sure the panel had nothing to do with the opinion's being placed at page 666. Just accidental irony).
12.9.2008 5:12pm
David Schwartz (mail):
Not Judges. Juries. And this standard is public purpose vs. private purpose. I believe this is the existing standard, I'm not proposing a principle. You're lernin the law, so maybe you know the fancy wordin' and such, but I believe it boils down to, "Use your office for personal gain, go to jail." Now mabye the scenarios don't leave enough evidence to convict, but I beleive it's still a crime.
The problem is that personal gain is the normal reward for a job well done. Is it a crime to work hard and well because you want to be promoted or re-elected? This principle is precisely backwards. There is nothing wrong with upholding the public trust because you benefit thereby.

The problem is when, and only when, you sacrifice the public trust for personal gain.
12.9.2008 5:13pm
DC:
For another discussion of the quid-pro-quo requirement for bribery offenses, see the Second Circuit's opinion in United States v. Ganim, 510 F.3d 134 (2d Cir. 2007).
12.9.2008 5:49pm
TerrencePhilip:
A person can sell stocks all day long and make good profits just before a decline, but if they do so on inside information, then it's a crime.

A politician can trade political favors all day long and make decisions that smell to all other constituents but his own. However, when the politician sells his political power for his own personal gain, then it's a crime.


The line sometimes seems fine- however if the evidence is what the govt says it is, the case against Blago is ironclad, and he is a colossal idiot to boot. There couldn't be better evidence of criminal intent than what's on those wiretaps.

I've always wondered about the subtler cases: while I haven't dealt with federal criminal law, I found the "quid pro quo" cases interesting-- official act benefits A, and A responds by giving official B money or business opportunities. It's a crime if done expressly in exchange for the official act, but if you can't prove the link there's not a crime. You always see state pols who know a lot of people and they always seem to be getting in on this or that deal, where they end up making lots of money. I guess you have to either have the Blago-level stupidity where they openly admit what they've done, or you infer intent from large economic benefits. Even there I'd think it would be very hard to prove corruption.
12.9.2008 5:49pm
CB55 (mail):
What if you gave me a job as ambassador and I wrote a very big check in behalf of the starving children of Zimbabwe in the name of your long dead cousin of 150 years ago?
12.9.2008 5:49pm
erics (mail):
I'm not familiar with criminal law, but we are discussing a complaint, not an indictment, so I would think these broad allegations will be distilled into something more substantive in the near future. Fitzgerald explicitly stated during his presser he was not aiming to criminalize horse trading.
12.9.2008 5:53pm
MQuinn:
cirby,

I am going to leave aside the obviously debatable proposition that Obama got elected "by letting the Chicago machine hold his hand the entire way." Instead, I will attack the meat of your post -- that Obama's association with the likes of Blaggy &Rezko equals sufficient evidence of corruption.

Given that Obama is a democrat who hails from Illinois, it is unlikely that he would not know Blaggy. Further, why would you conclude that this association with Blaggy = corruption in the face of stronger evidence to the contrary -- Blaggy's statements of anger at Obama's refusal to partake in bribery? In other words, it seems like we have some affirmative evidence of Obama's refusal to participate in corruption, yet you decide instead to draw an unsubstantiated inference from Obama's association with Blaggy that Obama is on the take. Under Occam's razor, the position w/ the fewest assumptions is generally the correct position. I suggest that, under Occam's razor, you lose.

Also, your attempt to say that Obama or Emmanuel would have been on the take but for the investigation is seriously weakened by news reports that Emmanuel is the one that blew the whistle on Blaggy's wrongdoing, here.
12.9.2008 5:59pm
Pyrrhus (mail) (www):
If corruption is defined by "intent to profit" rather than some procedural illegality, could Blagojevich give away the senate seat in a charity auction?
12.9.2008 6:19pm
Paul Milligan (mail):
DiveristyHire -

"Paul Milligan, what are you intending to convey by identifying President-Elect Obama as "brobama"? I think I know, but I'm not sure."

I mean 'he was elected because he is black, and no other reason.' I mean 'Blacks, plus white kids wanting to demonstrate their political / racial correctness / personal regret over MLK and JFK by voting for a black guy, put Brobama in office'. That, coupled with the magic of David Axelrod ( the liberal Rovian Satan ) in running a campaign, the corrupt Chicago / Illinois Machine, and masterful use of the Internet in fundraising ( discarding conveniently all his prior blood-oaths to take public financing if his opponent did ), plus the liberal media bias and liberal bias in our educational system. And his well-executed tie-in to the fallacy of 'The ObaMessiah', 'The One', his building of a pseudo-religious fervor and cult behind the ludicrous pretension of 'This Black Man was Sent to SAVE THE WORLD'.

Clear enough ? It was not his track record ( minimal in quantity by any account, and trivial by quality by any evaluation ), nor his qualifications ( hell, even Hillary had more than him ), but rather the simple fact that he is the first light-skinned ( somewhat more acceptable to some people ) black to run on any credible ( vote getting ) level. Plus, all the Repubs could muster against him was a good, honorable, semi-conservative very old white guy who wasn't willing to lie as much.

It was not because he had ANY substantive policy difference with Shrillary. He got elected because he is black. Period.

Jesse ? Al Sharpton ? Come on - the White House has not yet sunk to the level of ghetto-fabulous. But - a black guy who acts white, sounds white ? Who speaks English instead of Ghetto ? THAT and THAT ALONE is what put him there.

McQuinn- "Please explain how my post mischaracterized your position?" - because you neglected every point I made. To summarize my post as ""Obama is young and came from Illinois"? " is to intentionally ignore every substantive fact presented.

Do I have some kind of evidence against Brobama sufficient to bring him up on criminal charges ? No. Neither did the prosecutors of John Gotti have sufficient to win a conviction, until the very end.

However - Gotti was regardless a Mob boss all his life, and Brobama is a manipulator, a game-player, who plays the system and the moods and social undercurrents of the electorate deftly ( IN Chicago, in Illinois, and now nationally ), who used his minority color coupled with his pseudo-whiteness ( he belongs to a black-radical black-liberation-theology church for over 20 years, he gets married there, his children get baptised there, he names the pastor repeatedly as his 'inspiration and moral guidepost', and yet somehow distances himself from all of it ) to pretend to be 'mainstream'. He is not - never was, never will be.
12.9.2008 6:23pm
VincentPaul (mail):
Veritas,
Not if he (Bush) has any sense of justice whatsoever. Ryan deserves to serve each and every day of his sentence.
12.9.2008 7:16pm
VeritasOmnibus:
That's some good satire.
12.9.2008 7:17pm
Cornellian (mail):
Wouldn't it be awesome if Gov. Blago ended up sharing a jail cell with his predecessor, Gov. Ryan?
12.9.2008 7:50pm
Jerry F:
What is truly striking about the story is, why would Blagojevich have felt so confident that Obama would have bought the Senate seat from him? If I had the power to appoint a Senator, it would not even cross my mind that selling the position to the President-elect is an option. I don't think it is particularly unreasonable to infer that Blagojevich could well have engaged in illegal deals with Obama in the past, from which he presumably derived an expectation as to how the President-elect would respond to his offer. What Blagojevich didn't take into account is that given Obama's newfound position of power, his relationship with petty crooks like Blagojevich is no longer the same. Why am I not surprised not to see this covered by the media?
12.9.2008 8:02pm
DiversityHire:
don't think it is particularly unreasonable to infer that Blagojevich could well have engaged in illegal deals with Obama in the past

I get the impression Blagojevich has a bit of a problem with empathy. Some suggest he is a sociopath. In making his little mental models, his mental models of others may be a tad deficient. If you're going to be a successful sociopathic politician, it helps to be a smart sociopath first.
12.9.2008 8:13pm
David Schwartz (mail):
Jerry F: Perhaps because it's sheer speculation unsupported by even a scintilla of evidence? Sheer speculation may be sufficient to justify investigating, but it's certainly not sufficient to justify reporting.
12.9.2008 9:49pm
1Ler:
President-elect Obama: "I am shocked, shocked to find that [bribery] is going on in here!"
12.9.2008 10:23pm
jbarntt (mail):
I'm not a lawyer, so I lurk often and post rarely.

That the HHS Sec. position pays only a bit more than the governorship of IL may be true, but in any deal each party trades something they view as less valuable than what they receive. It need not be monetary.

Blagojevich has been a U.S. congressman, and a governor. A nice resume addition would be cabinet Sec. at the Fed. level, esp. if he had higher ambitions. Note that both Tom Ridge and Bill Richardson had some traction either as presidential or veep nominees for such reasons.

Some of the wiretapped conversations released by DA Fitzpatrick show Blagojevich as possibly interested in a presidential run in 2016, hence the resume enhancement gained via trading his appointment could be considered a bribe request.

Whether federal or state law sees it this way, I have no idea.
12.9.2008 10:59pm
Elliot123 (mail):
" I'm shocked, shocked to find that gambling is going on in here!"
12.9.2008 11:21pm
Bob Goodman (mail) (www):
I turned to the Conspiracy to see if anyone besides me thought that one count stuck out funny, and sure enough. If trading one office for another be illegal bribery, then by extension all politics is criminalized. You couldn't hire campaign workers for money even if their jobs were real, not no-shows. Come to think of it, you couldn't even accept pay for a public office, unless somehow its salary having been voted on by many politicians rather than decided by one sanitized the practice.
12.10.2008 12:30am
Lee P (mail) (www):
Prof. Volokh said:

"But the government's theory, I take it, would apparently treat such a deal as a federal crime — assuming the federal jurisdictional requirements are met — even if it were a standalone deal by an otherwise uncorrupt official."

What are the federal jurisdictional requirements? Is there a federalism angle to all of this? Have federal authorities ever arrested a sitting Governor before?
12.10.2008 1:53am
John Skookum (mail):
David Schwartz: <I>Sheer speculation may be sufficient to justify investigating, but it's certainly not sufficient to justify reporting.</i>

Prior to the election, there was no meaningful investigation <B>or</b> reporting on the Chicago cesspool from which Obama arose. For example, only one reporter (Stanley Kurtz of the <I>National Review</i>) has ever bothered to open up the files of the Chicago Annenberg Project, where Obama got the only executive experience of his entire life, or investigate how it sloshed millions of dollars around the hard Left core of the Democratic machine.

If Obama turns out to be just another dirty Chicago thug and goes down with Blagojevich, the mainstream media that averted their eyes from his obviously corrupt associations will have a great deal to answer for. There was certainly no shortage of investigative resources for panty-sniffing patrol in Wasilla.
12.10.2008 2:33am
John Skookum (mail):
David Schwartz: Sheer speculation may be sufficient to justify investigating, but it's certainly not sufficient to justify reporting.

Prior to the election, there was no meaningful investigation or reporting on the Chicago cesspool from which Obama arose. For example, only one reporter (Stanley Kurtz of the National Review) has ever bothered to open up the files of the Chicago Annenberg Project, where Obama got the only executive experience of his entire life, or investigate how it sloshed millions of dollars around the hard Left core of the Democratic machine.

If Obama turns out to be just another dirty Chicago thug and goes down with Blagojevich, the mainstream media that averted their eyes from his obviously corrupt associations will have a great deal to answer for. There was certainly no shortage of investigative resources for panty-sniffing patrol in Wasilla.
12.10.2008 2:34am
David Schwartz (mail):
John Skookum: I'm curious how you know that there was no investigation. I'm further puzzled why someone who disliked Obama didn't just do the research and release it over the Internet or to the mainstream media. In short, your claims are extraordinary and would require extraordinary evidence to have any credibility.
12.10.2008 5:24am
Anarchus (mail):
Here's what bothers me about the Chicago political process and Obama and the new Blago revelations.

1. It's a matter of record that Obama was elected to the U.S. Senate in November 2004, that in March 2005 his wife's annual salary in the University of Chicago Hospital System was almost TRIPLED from $121,910 to $316,962, and then in 2006 Senator Obama earmarked $1 million for the construction of a new pavilion for the Hospital System his wife worked for . . . . now I'm not alleging that constitutes bribery or fraud or any criminal offense whatsoever, but the facts are the facts, though correlation does NOT imply causation.

2. In my opinion, all Governor Blago was doing differently from the Obama's in #1 was being upfront and honest (well, and vulgar and profane) about the process.

My two cents' worth.
12.10.2008 8:17am
John Skookum (mail):
I'm curious how you know that there was no investigation.

Stanley Kurtz was the first and only reporter to request that the Chicago Annenberg Challenge files at the U. of Illinois-Chicago be opened for inspection. This was in August, many months after Obama had won the nomination. The CAC was the only executive experience Obama had before being elected President, and not one member of the mainstream media bothered to look into its records.

Contrast that with the 400 reporters that were sent to Alaska to dig up dirt on Sarah Palin, or the resources that were poured into scrutiny of every page of George Bush's National Guard records in 2004 (even resulting in a blatant forgery by CBS when they found no smoking gun.)
12.10.2008 8:44am
CalvinY:
Dozens of news organization reveiewed and covered the Annenberg files when they were made available by the University.
12.10.2008 8:55am
David Schwartz (mail):
John Skookum: Even if nobody followed up this one possible lead, it proves nothing. Perhaps nobody thought of it. If it was so obvious, why did nobody in the non-mainstream media follow it up? You're being ridiculous.
12.10.2008 11:20am
mongoose (mail):
If Barack Obama agreed with Hillary Clinton that if she supported him in the general election, he would appoint her Secretary of State, would that be a crime?
12.10.2008 11:42am
jukeboxgrad (mail):
anarchus:

Obama earmarked $1 million for the construction of a new pavilion for the Hospital System his wife worked for


Obama's earmark request didn't pass:

among those that had been killed were his request in 2006 for $1 million for an expansion of the University of Chicago Medical Center


Another important fact you seem to not know: also on Obama's list were earmarks for about eight other Chicago hospitals. And most of those other earmarks were larger.

If he really wanted to help his wife's career, he wouldn't be doing so much to support the institutions that compete with her employer. The facts show that he was advocating for health care in general, and not for one hospital.

the facts are the facts


Your recitation of the facts omitted some important facts.
12.10.2008 12:17pm
TCO:
Eugene (pay attention to me, me, ME):

I would like to see you post what you think of Fitz's policy of press releases and in general how prosecturs manage this. I get the sense that Star basically took a hands off approach wrt Clinton and this damaged him/his case. Fitz seems much more aggressive to fight things out in the court of public opinion (even getting a reprimand for it). But maybe it helps him go up against politicians who have a lot of power, power to rally press and supporters etc.
12.10.2008 1:00pm
Roy Mustang (mail):
The media averts its eyes away from any possible Obama involvment and covers up his lie about not meeting the Gov.

Obama averts his eyes away from blantant corruption in his home state's governer's office. After all, the Gov offered to sell the seat to him.

Moral courage, thy name isn't Obama.
12.10.2008 1:28pm
elscorcho (mail):
One of things that bother me about this is that the federal government uses the catch-all mail/wire fraud laws to fight state or local level corruption. This may be a little more in federal territory because its a Senator's seat, but its the state laws that govern the filling of that vacant seat. How the governor of that state chooses to fill that vacancy should be governed by state laws. I know that state level corruption is a contentious issue, but if it was clear that the federal gov't had jurisdiction here, they wouldn't need to torture mail or wire fraud laws to make convictions.
12.10.2008 2:05pm
LM (mail):
Roy Mustang:

The media averts its eyes away from any possible Obama involvment and covers up his lie about not meeting the Gov.

And what evidence that Obama met Blago do you have that's managed to elude Prof. Lindgren? Because if he didn't actually meet with the Governor, he's not lying about it, is he? And in that case, what would the proper term be for your calling him a liar?
12.10.2008 4:14pm
John Skookum (mail):
CalvinY: Dozens of news organization reveiewed and covered the Annenberg files when they were made available by the University.

According to Kurtz, until he went and raised hell to have the files opened, not a single reporter had been there before him.

I have seen no stories outside of National Review that would indicate that they were checked out at all, much less checked with the kind of gleeful thoroughness with which the press ransacked the records of George Bush and Sarah Palin.

The CAC files took up something like eighty feet of shelf space. Even Kurtz could not get through it all before the election. A press worthy of the name would have done this before Obama got the nomination, or certainly in the six months afterward.

Who knows what surprises may await within, when Fitz and his men get done cross-refrencing testimony with the paper trail? From the details of Blagojevich's indictment, it would appear that setting up non-profit slush funds is an accepted way for Chicago Democrats scratch each others' backs. This may turn out VERY badly for Obama and the country, not least because we may end up with a President Biden.
12.10.2008 4:24pm
jukeboxgrad (mail):
skookum:

According to Kurtz, until he went and raised hell to have the files opened, not a single reporter had been there before him. I have seen no stories outside of National Review that would indicate that they were checked out at all


Chicago Tribune, 8/27/08:

The University of Illinois at Chicago on Tuesday released more than 1,000 files detailing the activities of an education reform group in which both Barack Obama and former 1960s radical William Ayers played key roles.

The release of the Chicago Annenberg Challenge documents turned the sterile special collections room at the university's Daley library into a media frenzy. Television crews hovered at the room's entrance. Librarians scurried to copying machines to fulfill the requests of a roomful of reporters.


Is Kurtz especially large? He must be, if he was alone in the room, and nevertheless made up "a roomful."

I have seen no stories outside of National Review


The article I just cited was not hard to find. It's mentioned in the factcheck article on Ayers. So maybe you should put a little more effort into finding "stories outside of National Review."

not a single reporter had been there before him


Can you show us where Kurtz said that, and what he offered as proof?
12.10.2008 5:08pm
john gurley (mail):
Anarchus:

"It's a matter of record that Obama was elected to the U.S. Senate in November 2004, that in March 2005 his wife's annual salary in the University of Chicago Hospital System was almost TRIPLED from $121,910 to $316,962, .."

I would guess her salary increase had something to do with her promotion from executive director to vice president of community affairs. Considering she had worked in public administration for 12 years, and had a doctoral degree, it would appear she was well qualified for the job.
12.11.2008 2:46pm
MikeS (mail):
I get the sense that Star[r] basically took a hands off approach wrt Clinton and this damaged him/his case.

Publicly releasing the unedited Monica Lewinski tapes was a hands-off approach?
12.11.2008 3:45pm
KarenS (mail):
No one disputes that Gov. Blagojevich had the absolute right to nominate himself to the Senate seat. Ergo, does he not therefore have the absolute right to use the seat to benefit himself? He could rightfully grab the seat and the salary it pays for himself or for his wife. (He probably should have done that, just nominate his wife and take the Senate salary along with the Governor salary; its apparently legal.)
12.11.2008 11:00pm
TCO:
Mike S: No.
12.12.2008 8:45am

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