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Tuesday, July 21, 2015

Ind. Decisions - 7th Circuit decides Blagojevich appeal

This brief early story from the Chicago Tribune, by Jason Meosner, on the just released 7th Circuit opinion in US v. Blagojevich begins:

In a long-awaited ruling, a federal appeals court in Chicago on Tuesday threw out five of 18 counts against convicted former Gov. Rod Blagojevich, vacated his 14-year sentence and ordered him retried on the five counts.

While finding five of the counts invalid on technical grounds, the 7th Circuit U.S. Court of Appeals called the evidence against Blagojevich “overwhelming” and made clear that the former governor was not entitled to be released from prison in the meantime.

“It is not possible to call the 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence,” Judge Frank Easterbrook wrote in the unanimous opinion

This paragraph from page 5 of the 23-page opinion caught the ILB's eye:
But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. 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. [ILB emphasis]
The references to logrolling continue, including at p. 6-7:
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 Sen ate), is a common exercise in logrolling. We asked the prose cutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.
And (skipping a couple, at p. 11:
Put to one side for a moment the fact that a position in the Cabinet carries a salary. Suppose that Blagojevich had asked, instead, that Sen. Obama commit himself to supporting a program to build new bridges and highways in Illinois as soon as he became President. Many politicians believe that public-­works projects promote their re-election. If the prosecutor is right that a public job counts as a private bene fit, then the benefit to a politician from improved chances of election to a paying job such as Governor—or a better pro spect 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 sin cerely 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.
The Tribune also has a valuable online respository of legal documents and admitted evidence for the Blagojevich trial.

Posted by Marcia Oddi on July 21, 2015 04:57 PM
Posted to Ind. (7th Cir.) Decisions