Guilt by Complication

The Blagojevich blowout shows a long indictment may signal weakness.

In a November 2008 telephone conversation that was recorded by the FBI, Illinois Gov. Rod Blagojevich daydreamed about what he could get for appointing Barack Obama's preferred choice to fill the president-elect's Senate seat. "Cabinet's out of the question," he said, "but Health and Human Services…I'd take that in a second. That'll never happen." On another occasion, Blagojevich wondered about a position with the Red Cross, only to have his chief of staff throw cold water on the idea by noting that Obama had no authority over the organization.

Given details like these, it's not surprising that U.S. Attorney Patrick Fitzgerald failed to convict Blagojevich of illegally plotting to sell Obama's Senate seat—the most sensational accusation against him and, aside from a tangential charge of lying to the FBI, the one on which the jurors came closest to agreement. With a case based on ambiguous conversations and testimony from former cronies looking for lenience, Fitzgerald did what federal prosecutors often do: He piled on the charges, accusing Blagojevich of 24 separate but largely redundant counts in the hope that some of them would stick. In a salutary rebuke to overzealous prosecutors, the case collapsed under the weight of its confounding complexity.

The essence of Blagojevich's alleged crimes is straightforward: He was accused of using his position for personal advantage by trading official actions for campaign contributions and other things of value. Given these allegations, the bribery charges (two of the 24) make sense.

But because the feds swooped in to abort what Fitzgerald described as "a political corruption crime spree" that "would make Lincoln roll over in his grave," most of Blagojevich's talk never turned into action. His revenge fantasy of pressuring the Chicago Tribune into firing an editor who had said mean things about him, for example, did not go anywhere. Such fizzled schemes became "attempted extortion" (four counts), "conspiracy to commit extortion" (two counts), and "conspiracy to commit bribery" (two counts).

In case jurors saw bluster (or "political horse trading,"as Blagojevich claims) where prosecutors saw conspiracy, Fitzgerald also charged the former governor with depriving his constituents of their "intangible right of honest services." When Blagojevich was arrested and indicted, the definition of this crime was so fuzzy that no one really knew what it meant.

Last March, finding the statute unconstitutionally vague, the Supreme Court restricted it to cases involving bribery. Hence the allegations against Blagojevich that relied on the "honest services" statute, which in turn were the basis for 11 counts of "wire fraud" (because he used a telephone to communicate with his associates), depended on the shaky bribery charges they were supposed to reinforce.

The prosecutors also said Blagojevich's chats amounted to "racketeering" and "racketeering conspiracy" (one count each) under the egregiously overused Racketeer Influenced and Corrupt Organizations Act, a 1970 law aimed at organized crime. To convict Blagojevich on those counts, the jurors had to conclude that he and his allies created an "enterprise" that was implicated in a "pattern of racketeering activity" involving at least two distinct but related crimes.

Not surprisingly, the multitude of charges, all based on the same underlying conduct but drawing on different statutes with different criteria, proved confusing to the jurors. "It was like, 'Here's a manual, go fly the space shuttle,'" one told The New York Times. After 14 days of deliberation, the jurors reached a verdict on just one ancillary charge: that Blagojevich lied to the FBI when he claimed he did not keep track of his campaign donors.

Fitzgerald plans to retry Blagojevich, who may yet be convicted of bribery or extortion. But the prosecution's failure in a trial where the defense did not even bother to present any witnesses shows that the length of an indictment is not a reliable indicator of a defendant's guilt. Since people tend to assume that anyone who faces dozens of charges must have done something wrong, that is a welcome reminder.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. This column first appeared at Reason.com.

© Copyright 2010 by Creators Syndicate Inc.

Jacob Sullum is Senior Editor





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