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.

© Copyright 2010 by Creators Syndicate Inc.

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  1. Good morning reason.

  2. Making one simple charge that has to stand up to challenge by the defense; without blurring it with bulk and layer after layer of insinuations would demand honesty on the part of the prosecution. You’re not going to find a prosecutor that’s willing to deal in that undesireable commodity.

    BTW, Fitzgerald is one of the very worst. He’s a partisan hack looking to jump to higher office. He really needs to find a real job and get off the public teat.

    1. Yeah, a real job like making license plates from being convicted of prosecutorial misconduct in the Plame/Libby bs, wasting millions of dollars when he knew from the word go where the “leak” came from.

      1. With Scooter, the republicans wanted a leak investigation, they got one.

        In one corner, we have overzealous prosecutors, in the other corrupt politicians, we lose either way.

        1. the republicans wanted a leak investigation

          How you figure that? Not arguing, just don’t understand.

          1. I vaguely remember them wanting to get to the bottom of it, but I guess i’m wrong.

            After looking it up, it was the CIA that wanted the investigation, not republicans per se.

          2. The CIA was the first to formally reqest an investigation. Shortly after, Bush made his statement that he wanted to know who the leaker was, and wanted him punished if any laws were broken. I assume that’s what TrickyVic is referring to.

            Note that nobody was actually convicted for leaking Plame’s name. Libby was convicted for lying to investigators, and lying while under oath.

            1. I was under the impression that FitzGerald’s investigation concluded that no crime had been committed with respect with Plame’s name becoming known as a CIA employee.

              That Libby was prosecuted always seemed wrong. How can someone be convicted of lying about a crime that wasn’t committed?

              I felt the same about Martha Stewart too. Wasn’t she convicted for lying abut a crime that wasn’t committed too?

              1. It’s not lying about a crime that matters. It’s lying in general. It’s giving them information you know to be false. You can’t do that. That’s why it’s smarter to keep your mouth shut.

            2. Bush first said he would punish who ever leaked, not just if they broke the law, but quickly changed his tune.

              1. Bush first said he would punish who ever leaked, not just if they broke the law, but quickly changed his tune.

                Another myth. His press secretary said something in a press conference about how leakers “would not be working for this administration.” (paraphrasing) The next day Bush talked about it himself and stated that if any laws were violated that person would be punished.

  3. the case collapsed under the weight of its confounding complexity

    And you cannot discount Blago’s near-genius cultural carpet-bombing (aided and abetted by a gaga press) wherein the accused felon and sleazy politician morphed himself into a reality show entertainer, an incompetent bungler, a human punchline worthy of pity. How could any jury member inoculate himself from the all-Blago, all-the-time media circus?

    1. The ‘off’ button on the idiot box?

  4. 11 of 12 jurors were ready to convict on 21 of the charges. The lone hold-out was a liberal former state employee who once wroked for Blago’s press secretary.

    Certain legal issues will always be difficult to explain to laymen with no background, and proscutors have their work cut out trying to explain it without over-simplifying. But this case is more about an obstinate hold out than piling on overly-complicated charges.

    1. The lone hold-out was a liberal former state employee who once worked for Blago’s press secretary

      How do you know Jo Ann Chiakulas is a “liberal”? Because she listens to NPR? My exhaustive, 5-minute internet search says this about her: Coincidentally, the Chicago Urban League was once headed by Cheryle Jackson, a former Blagojevich press secretary, although it appears Chiakulas left the Urban League several years before Jackson became the league’s president.

      1. Thanks for pointing out the error. And it’s true that I didn’t shave her head to find the incriminating “liberal” birthmark, but she’s giving off enough of the tell-tale signs. Her background gives a clue as to what her motivations were to deadlock the otherwise unanimous jury.

        But, even if we take political motivation out of it, there are some jurors who simply become obstinate for personal reasons, and deadlock a jury. They’re like Henry Fonda without the persuasiveness.

        The fact remains that it seems most likely Blago’s mistrial was the result of hitting the jury pool lottery, not the strength of his defense.

        1. Ahem….

          “Department of Public Health Director John Lumpkin named Jo Ann Chiakulas of Chicago as the first special assistant for minority affairs, effective September 16. Chiakulas is charged with setting up and supervising the department’s new Chicago-based Center for Minority Health Services. Created by H.B. 1216 (PA. 87-633), the center will evaluate the health needs of minorities in Illinois, provide training and technical assistance and improve coordination and communication with minority groups. According to the department, minorities are at greater risk for AIDs, infant mortality, lead poisoning, heart disease, stroke, homicide and high-risk behaviors such as smoking and alcohol use.
          Chiakulas was director of the Chicago Urban League’s Young Parents Center for over 10 years and was coordinator for the state’s Parents Too Soon program. She has also worked with the Chicago Department of Mental Health and the Belden Manor Shelter Care Home in Chicago.”

        2. As far as I’m concerned, our jury system is creaking with age.

          We pick 12 people out of a pool of bored retirees, losers, the professionally idle or actual productive citizens resentful for having to be there. We then expect them to sort through the claims of expert witnesses in maybe half a dozen fields, or unravel the minutiae of up to 200 years of political laws cobbled together from madness, obsession and fluids of a questionable nature.

          But, yeah, I know. How dare I question the Holy Jury Of Our Peers system. Shame on me. 😛

    2. That’s probably why there will be a re-trial.

      1. Abdul is right about one thing: it seems to be a clear case of nullification. Her motives are known only to herself, though she seems to have had no direct or even indirect link to Blago or his employees. That would have come out during jury selection, no?

        1. That is what is seems to be. But you know I am so cynical about the Justice Department, I can’t help but laugh and be happy he got off. This despite the fact that Blago really is everything I normally hate. It is just that Fitz and DOJ are so bad, they make even a corrupt machine politician from Illinois look sympathetic.

          1. I’m pretty much in the same place; the DOJ is so corrupt that I’m glad even when total scumbags escape its butcher shop.

            Also, I have no problem with juror nullification as a general concept — I’d actually like to see it used more often.

            1. It only takes one.

            2. I have no problem with jury nullification, but juror nullification is going too far. Get 12 people to agree that you shouldn’t go to jail, regardless of whether you technically violated the law, and I’ll buy. But the system can’t be so fragile as to let injustice happen just because one person acts in bad faith or irrationally. Falsely letting people go for real crimes is just as unjust as falsely punishing innocents.

          2. No. Blago is a big enough of an asshat that the need to see his pretty little ass in prison outweighs all other concerns. Planets may spin out of orbit if he never sees jail time.

  5. I too am glad that B-Rod walked, mostly, though as Abdul points out, it was really too close. As Jacob says, most of the charges were pure bullshit, and I am not at all crazy about the idea that it is necessarily a crime to lie to an FBI agent. J. Edgar Hoover was the greatest press agent who ever lived, and we’re still paying the price.

    I think that Fitzgerald rushed his case, for several reasons–the press was about to go with it, plus he might have been afraid that he would pick up someone close to Obama saying something indictable, which would be a hell of a way to start off the new administration.

    1. Hey Alan, it is not merely a crime to lie to an FBI agent. It is a crime to lie to any federal employee who is engaging in an investigatory function.

  6. Why is it a crime to lie to FBI agents?

    It is perfectly acceptable for them to lie. It is almost expected that they will lie and manipulate in order to get information from a suspect.

    Either they should be required to be honest or it should not be a crime to lie to them.

    1. The state needs a monopoly on mendacity. It’s too difficult to get people to give up their rights by acting honestly.

    2. They can lie to you with impunity. They can tell you they have evidence against you they don’t. They can lie and tell you that the prosecutor will go easy on you if you just confess, even though they have no authority to make any such promises. But if you say one thing to them that is contradicted by someone else, they can indict you and send you to jail for that even though you are innocent of the crime they were investigating. That is what happened to Scooter Libby and Martha Stewart. And it was an outrage in both cases.

      Sadly people were in Libby’s case so partisan and happy to see someone associated with Bush go down and in Stewart’s case so full of schadenfreude they allowed what I think are two horrible miscarriages of justice to happen. Worse still, this kind of shit goes on every day in this country. You just never hear about it because the people are not famous.

      1. But if you say one thing to them that is contradicted by someone else, they can indict you and send you to jail

        Now you tell me.

        1. We told you before, you just misremembered.

          1. Take a page from the Bush admin, he misspoke when he denied using substances.

      2. One set of laws for the political class, and another set for the proles.

        What year is it?

        1. At least the Ancien Regime was filled with people who really were educated and sophisticated. What do these clowns have to offer?

      3. But if you say one thing to them that is contradicted by someone else, they can indict you and send you to jail for that even though you are innocent of the crime they were investigating.

        And if that someone else is a confidential informant (who may or may not exist), you’re never going to find out who they are unless you lawyer up and go to trial. It’s disgusting how many people know they can’t afford legal bills and just confess.

        1. Best advice: if you’re stupid or gullible or even innocent, keep your mouth shut until you get representation.

          1. Best advice is to always not say anything. But understand of course if you are later convicted of anything they will increase your sentence for not being cooperative.

            1. “”they will increase your sentence for not being cooperative.””

              Or is that one of the lies they tell?

        2. Innocent until proven guilty is a myth.

          You are held guilty until you pony up the cash to pay a lawyer to prove your innocence.

          1. That is why we should ban guilty pleas. The system of plea bargaining has been too abused by the government. If you were not able to plead guilty and the government had to prove its case no matter what, they would be a lot more careful about who they charged.

            1. Plea bargaining is a pretty cool system if you approach it from the point of view where maximum conviction numbers are the goal.

              It’s a numbers game.
              Right and wrong don’t matter. Guilt and innocence don’t matter. Justice doesn’t matter. Only numbers matter.
              A prosecutor with high numbers has a good chance of climbing the political ladder.

              The whole system makes me sick.

              1. People talk about Atlas Shrugged as the gateway drug to libertarianism. For me it was The Count of Monte Cristo.

                I’m amazed that after hundreds of years of corruption and abuse, we the people still love sending the Procureur du Roi on the road to wealth and power.

            2. “”That is why we should ban guilty pleas. The system of plea bargaining has been too abused by the government. “”

              That seems like you want to ban plea bargaining. If a person wants to plead guility they should have the right to do so. If not, we need more judges and more prosecutors, which means more taxes to pay for it. I’m interested in cutting federal spending.

              1. If a person is allowed to plead guilty then you will get de facto forced guilty pleas. And as far as the extra resources, that is only one possible response. The better response would be to prosecute fewer cases.

                1. It’s also lead to a situation where penalties have been jacked up in order to encourage plea bargains. You can plea out and get 5 years, or take a chance you might get 20. Which would you do? That’s a tough choice even when you know you’re innocent.

                  1. “That’s a tough choice even when you know you’re innocent.”

                    If you don’t have enough cash to pay someone to prove that innocence in court, there is no choice.

                2. “”The better response would be to prosecute fewer cases.””

                  I personally agree with that but it would require fewer laws. That is not the direction this country is moving, so it’s a pipe dream.

                  “”If a person is allowed to plead guilty then you will get de facto forced guilty pleas.””

                  If an innocent person wants to plead guilty for a crime they didn’t commit, that’s their choice. You shouldn’t be scared of trumped up charges if they are false. But they trump them up to strike a plea deal. Which goes back to the concept of plea deal, not whether or not one should have the right to plead guilty.

          2. Innocent until proven guilty is a myth.

            You are held guilty until you pony up the cash to pay a lawyer to prove your innocence.

            I can’t disagree with this. The American criminal justice system has become one of the biggest rackets in the world, and one that employs an enormous number of people.

            1. It’s our own fault for electing lawyers to the position of lawmakers.

              Talk about conflict of interest.

      4. “”Sadly people were in Libby’s case so partisan and happy to see someone associated with Bush go down and in Stewart’s case so full of schadenfreude they allowed what I think are two horrible miscarriages of justice to happen.””

        The same could be said about Bill Clinton.

        1. The same could be said about Bill Clinton

          Yup and this guy that more often than not votes Republican thought that impeaching Clinton was one of the most stupid things thing that the Republicans could have ever done

          1. I just find it interesting when right leaning people talk about wrongful perjury convictions, they leave out Clinton’s name.

      5. Scooter could have easily avoided a perjury trial by being honest. When you’re lying, and kept personal notes that prove you’re lying. You deserve a perjury rap.

    3. In fairness, whereas they often have a statutory duty to investigate, you always have a constitutional right to say nothing.

      1. Constitutional right?
        Since when did rights come from the constitution?
        I thought rights were protected by the constitution.

        The term ‘constitutional right’ is a misuse of language.

        1. You’re being pedantic. Everyone knows what is meant by “constitutional right.” Should we rename the Bill of Rights the “List of Constitutional Protections”?

          1. I don’t consider it is minor at all.

            I would be happy with ‘constitutionally protected right’ because it acknowledges that rights do not originate with government.

            The entire concept of freedom is being turned on its head.
            It is being turned from ‘free to do that which is not prohibited’ to ‘free to do that which is allowed’.

            Terms like ‘constitutional rights’ enforce this idea.

            1. Just where do these rights originate?

              I know the Declaration of Independence says they are endowed by our creator, but I have a hard time accepting the existence of such a being. Can you identify the entity or phenomenon responsible?

              1. “”I know the Declaration of Independence says they are endowed by our creator,””

                That’s plain english, they come from your mom and dad.

              2. “Just where do these rights originate?”

                From the fact that you exist.
                Your right to speak your mind comes from your having a mind, not because some lawmaker (or other supernatural being) says so.

                1. “”From the fact that you exist.””

                  Animals exist. If existence in and of it’s self that equals right, the PETA’s on to something. Plants should have rights too.

                  The natural rights arguement is based on our humanity, not mere existence. But like it or not, a claim of natural rights will not win your court case.

                  1. “a claim of natural rights will not win your court case.”

                    I’m not stupid, and in my mind the only good lawyer is a dead lawyer.

                    1. also the defense lawyer for the guy who killed the lawyer.

                  2. While I don’t disagree with Tricky Vic’s line of reasoning, I think he is not going far enough You were requested to explain what “entity or phenomenon” was responsible for the existence of natural rights. You replied that the phenomenon of existence endows the extant object with natural rights. Tricky Vic pointed out that animals and plants exist etc. Of course there is no need to limit this argument to living things. Stars exist, and so do planets, and rocks, etc. In a later statement, you seemed to clarify your statement by restricting natural rights to objects that possess “minds”. If we ignore the fact that people have been struggling for mellennia to define just what a “mind” is, and just concede your point to you, this still begs the obvious question: Why do objects that possess minds have natural rights?

    4. The state has granted itself a monopoly on the use of fraud (lying for gain), much like their monopoly on initating force.

  7. Blago and Fitz probably both deserve to be cellmates. Blago for beng a lying sleazebag abusing his office, and Fitz for also being a lying sleazebag abusing his office. They can spend a few years abusing each other. It might be a passingly interesting, but otherwise pointless exercise to run the calculator to see which of them actually wasted more taxpayer money under the ‘good to be the king’ accounting column.

  8. Blago may be a lying sack of horse dung, but the case fell apart due to complexity and would have fallen apart on appeal due to the decisions to not allow the defense to bring in Obama officials to discuss the nature of the phone calls. Can’t convict him of seeking a bribe if the otherside was already offering the Quid for the Pro Quo. If he can’t bring in the witnesses to prove his case, then there is reasonable doubt that he was guilty.

    As for lying to the FBI, sorry, this is one where I have to side with the FBI. As a taxpayer who is genuinely tired of paying for waste, one area that is easily gotten rid of is having to pay 2 FBI agents for overtime stalking some white collar criminal who is lying through his teeth. Better to get to the truth quickly. I am all for protecting the innocent, but at the same, I feel that while you have the 5th amendment right to avoid self-incrimination, I have the 4th amendment right to avoid unfair or uncompensated use of my property by the feds. If you lie, you cost me money. I don’t get any bonus points for paying for your lie time, I don’t get a discount on next year’s taxes, so I don’t see a point in my putting up with Martha Stewart or Blago dragging things out at the expense of my constitutional rights.

    1. All we have as “evidence” that Blago lied to the FBI are the agent’s case notes. There is no audio or video tape of what transpired during that interview 5 years ago. There’s no independent witness who knows what went on during that interview. Like a jackass, Blago went into that interview without an attorney. So, it’s basically the agent’s word against Blago’s. I think it’s a toss-up as to whom is more believable.

      A modest investment in audio or video recording technology would drag the FBI into the 20th century and make it easier for many of the rest of us to side with you.

      1. No audio or video or such a high profile interview? Did the agent ride a short bus to work? If that is the case, we have bigger fish to fry here.

        1. “Did the agent ride a short bus to work?”

          It’s more the department’s fault than the agent, I would imagine.

  9. Great post, Very informative…

  10. As a result of this conviction I believe there should be two public hangings: Blago first, followed by Fitzgerald.

  11. Mr Sullum, you ignore the possibility that Blago tampered with the jury.

  12. “Well, we didn’t get any money… but Mr. Burns got what he wanted. Marge, I’m confused. Is this a happy ending or a sad ending?”

  13. Excuse me, but, a weak case? The vote was 11-1 for guilty on all but one of the counts. One juror going off on a tangent does not make a weak case make.
    If Hitler was put on trial in Illinois, you might find one juror voting for acquittal because Hitler liked dogs and was a vegetarian.

  14. How you figure that? Not arguing, just don’t understand.

  15. If that is the case, we have bigger fish to fry here.

  16. Blago dragging things out at the expense of my constitutional rights.

  17. The case “collapsed”? He was convicted of one count, and 11 of 12 voted for conviction on other counts. If that’s a collapse, I hope no case against me ever collapses.

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  21. A woman has got to love a bad man once or twice in her life to be thankful for a good one.

  22. Since people tend to assume that anyone who faces dozens of charges must have done something wrong, that is a welcome reminder.

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