The Volokh Conspiracy - A qualified defense of Obama, Emanuel, and Obama's staff if they did not turn in Blagojevich.

This post is not for those demented souls who think that Rod Blagojevich's approaches were so subtle that the Obama camp did not know that they was being shaken down. My timeline, which has now become the conventional account, strongly suggests otherwise.

And this post is also not for those Kool-Aid drinkers who think that Rahm Emanuel (or other staffer) was so incompetent or drunk with power that, knowing that their boss was being shaken down, they omitted to tell him, even while collecting Obama's list of acceptable candidates and conveying it to Blagojevich. Staffers just don't act like that -- certainly not a new staffer in a transition period in a state from which the president hails.

We don't yet know if Obama's staff turned in Blagojevich. If Obama's telling the truth that he was unaware of what was going on, it's extraordinarily unlikely that an Obama staffer reported Blagojevich, since I can't imagine that someone in the Obama camp would have turned in Blagojevich without telling Obama first.

So, for the purpose of this post only, let's make what may be the counterfactual assumption that none of Obama's staff blew the whistle on Blagojevich.

As I pointed out before, the federal misprision statute has been conclusively interpreted not to punish mere silence; there must be something more for a conviction, such as accepting a benefit to keep silent. Nor would obstruction of justice be an easy charge against the Obama camp.

So we are in the realm of ethics, not criminal law.

In my opinion, whether it was reasonable for the Obama camp not to turn in Blagojevich depends on facts we don't know yet. If Blagojevich himself offered an explicit quid pro quo in a conversation with Emanuel or David Axelrod, then I think the ethical thing would have been to turn him in to the FBI.

But if Blagojevich was careful in his discussions with the Obama staffers, and the quid pro quo was instead delivered by others, then I think that it is a close question whether the Obama camp should have called the FBI.

It is generally not prudent to make charges you can't prove -- and it would accomplish little to bring down just a Blagojevich staffer or a non-official intermediary. So, while I doubt that the Blagojevich camp's approaches were so subtle that they were misunderstood, they may have been indirect enough that a conviction would have seemed impossible.

I think that it's hindsight bias (based on the explicitness of the FBI's wiretapped conversations) to think that that the Obama camp thought that, if they turned in Blagojevich, a conviction was likely.

In my opinion, while the admirable course would have been to tip off the FBI, whether the Obama camp acted so deficiently that they acted unethically turns, not just on whether they knew they were being shaken down, but on what they reasonably thought could be proved against Blagojevich himself.

One last point: according to John Kass of the Chicago Tribune, Rahm Emanuel has not yet resigned his Congressional seat. Kass speculates it's because the power behind the governor is Jimmy DeLeo ("DeLeo is also considered by some to be the real governor of Illinois"), who is also very close to Emanuel. It's still remotely possible that Emanuel will be made a scapegoat, though frankly, he seems too ambitious to take the fall if he's not guilty of anything (and I strongly suspect he's not).

	[Jim Lindgren, December 13, 2008 at 1:12am] Trackbacks A qualified defense of Obama, Emanuel, and Obama's staff if they did not turn in Blagojevich. This post is not for those demented souls who think that Rod Blagojevich's approaches were so subtle that the Obama camp did not know that they was being shaken down. My timeline, which has now become the conventional account, strongly suggests otherwise. And this post is also not for those Kool-Aid drinkers who think that Rahm Emanuel (or other staffer) was so incompetent or drunk with power that, knowing that their boss was being shaken down, they omitted to tell him, even while collecting Obama's list of acceptable candidates and conveying it to Blagojevich. Staffers just don't act like that -- certainly not a new staffer in a transition period in a state from which the president hails. We don't yet know if Obama's staff turned in Blagojevich. If Obama's telling the truth that he was unaware of what was going on, it's extraordinarily unlikely that an Obama staffer reported Blagojevich, since I can't imagine that someone in the Obama camp would have turned in Blagojevich without telling Obama first. So, for the purpose of this post only, let's make what may be the counterfactual assumption that none of Obama's staff blew the whistle on Blagojevich. As I pointed out before, the federal misprision statute has been conclusively interpreted not to punish mere silence; there must be something more for a conviction, such as accepting a benefit to keep silent. Nor would obstruction of justice be an easy charge against the Obama camp. So we are in the realm of ethics, not criminal law. In my opinion, whether it was reasonable for the Obama camp not to turn in Blagojevich depends on facts we don't know yet. If Blagojevich himself offered an explicit quid pro quo in a conversation with Emanuel or David Axelrod, then I think the ethical thing would have been to turn him in to the FBI. But if Blagojevich was careful in his discussions with the Obama staffers, and the quid pro quo was instead delivered by others, then I think that it is a close question whether the Obama camp should have called the FBI. It is generally not prudent to make charges you can't prove -- and it would accomplish little to bring down just a Blagojevich staffer or a non-official intermediary. So, while I doubt that the Blagojevich camp's approaches were so subtle that they were misunderstood, they may have been indirect enough that a conviction would have seemed impossible. I think that it's hindsight bias (based on the explicitness of the FBI's wiretapped conversations) to think that that the Obama camp thought that, if they turned in Blagojevich, a conviction was likely. In my opinion, while the admirable course would have been to tip off the FBI, whether the Obama camp acted so deficiently that they acted unethically turns, not just on whether they knew they were being shaken down, but on what they reasonably thought could be proved against Blagojevich himself. One last point: according to John Kass of the Chicago Tribune, Rahm Emanuel has not yet resigned his Congressional seat. Kass speculates it's because the power behind the governor is Jimmy DeLeo ("DeLeo is also considered by some to be the real governor of Illinois"), who is also very close to Emanuel. It's still remotely possible that Emanuel will be made a scapegoat, though frankly, he seems too ambitious to take the fall if he's not guilty of anything (and I strongly suspect he's not).