Bottom line: Several counts were tossed, but the judges decreed that Blagojevich’s sentence was more than fair and still justifiable even with fewer counts against him.
Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich’s own mouth, is overwhelming. To the extent there are factual disputes, the jury was entitled to credit the prosecution’s evidence and to find that Blagojevich acted with the knowledge required for conviction.
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.
Because the instructions do not enable us to be sure that the jury found that Blagojevich offered to trade the appointment for a private salary after leaving the Governorship, these convictions cannot stand. […]
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 Senate), is a common exercise in logrolling. We asked the prosecutor 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. […]
The indictment also charged Blagojevich with wire fraud, in violation of 18 U.S.C. §1343. That the negotiations used the phone system is indisputable, but where’s the fraud? Blagojevich did not try to deceive Sen. Obama. The prosecutor contended that Blagojevich deprived the public of its intangible right to his honest services, which 18 U.S.C. §1346 defines as a form of fraud. To call this an honest-‐‑services fraud supposes an extreme version of truth in politics, in which a politician commits a felony unless the ostensible reason for an official act also is the real one. So if a Governor appoints someone to a public commission and proclaims the appointee “the best person for the job,” while the real reason is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job. That’s not a plausible understanding of §1346, even if (as is unlikely) it would be valid under the First Amendment as a criminal penalty for misleading political speech. And no matter what one makes of the subject, the holding of Skilling v. United States, 561 U.S. 358 (2010), prevents resort to §1346 to penalize political horse-trading. Skilling holds that only bribery and kickbacks violate §1346. So unless political logrolling is a form of bribery, which it is not, §1346 drops out. […]
What we have said so far requires the reversal of the convictions on Counts 5, 6, 21, 22, and 23, though the prosecutor is free to try again without reliance on Blagojevich’s quest for a position in the Cabinet. (The evidence that Blagojevich sought money in exchange for appointing Valerie Jarrett to the Senate is sufficient to convict, so there is no double-jeopardy obstacle to retrial. See Burks v. United States, 437 U.S. 1 (1978).) Because many other convictions remain and the district judge imposed concurrent sentences, the prosecutor may think retrial unnecessary—but the judge may have considered the sought-after Cabinet appointment in determining the length of the sentence, so we remand for re-sentencing across the board. (The concluding part of this opinion discusses some other sentencing issues.) […]
The district judge concluded that the Sentencing Guidelines recommend a range of 360 months to life imprisonment for Blagojevich’s offenses, and the actual sentence is 168 months. Instead of expressing relief, Blagojevich maintains that the sentence is too high because the range was too high. […]
Any error in the Guidelines calculation went in Blagojevich’s favor. After calculating the 360-to-life range, the judge concluded that it is too high and began making reductions, producing a range of 151 to 188 months. […]
The prosecutor has not filed a cross-appeal in quest of a higher sentence but is entitled to defend the actual sentence of 168 months (and to ask for its re-imposition on remand) without needing to file an appeal. Removing the convictions on the Cabinet counts does not affect the range calculated under the Guidelines. It is not possible to call 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence. […]
If the prosecutor elects to drop these charges, then the district court should proceed directly to resentencing. Because we have affirmed the convictions on most counts and concluded that the advisory sentencing range lies above 168 months, Blagojevich is not entitled to be released pending these further proceedings. [Emphasis added.]
“Chicago Med,” a medical drama and follow-up to “Chicago Fire” and “Chicago P.D.” that already film at Cinespace Chicago Film Studios complex on the West Side, had been in some potential jeopardy. Gov. Bruce Rauner in early June announced the state would defer action on any film tax credits for new projects that were not already under way. A strict interpretation of that standard would have been quite harmful to the city’s burgeoning TV and film industry.
But instead of letting the Chicago scene fade to black, Team Rauner, in the Illinois tradition, found a loophole.
After what I’m told were some rather high-level phone calls, “Chicago Med” got the tax credit green light.
“It’s considered an episodic follow on ‘P.D.’ and ‘Fire,’ ” says a knowledgeable source. “This is considered a follow-on.”
Advocates want Gov. Bruce Rauner to restore a $60 monthly allowance for adults with developmental disabilities, but his administration insists there’s no way to stop an automatic reduction to the allowance, especially given Illinois’ finances. […]
In the first increase in two decades, lawmakers temporarily raised the allowance last year to $60, up from $50 for people in group homes and from $30 for residents of intermediate care facilities. Now, it’s returning to the lower levels in place before the law, which granted the increase for fiscal year 2015 only. […]
Advocates cite administrative rules written by the state’s Medicaid agency that increased the allowance. Those rules took effect March 11 and included no expiration date. The Rauner administration’s interpretation of the rules is wrong, said Illinois Association of Rehabilitation Facilities CEO Janet Stover.
“As we pushed and provided information to them about the intent of the original legislation, we were told that it ultimately was a budgetary decision and they would not rescind the policy,” Stover said.
* Gov. Bruce Rauner was asked this week about why he gave all Republican legislators a total of $400,000 before the “right to work” floor vote…
“It had no tie to any particular vote.
“You know, I’m the head of the Republican Party. Madigan has been sendin’ campaign cash to members of the Democratic Party and the General Assembly for 35 years, OK?
“I just became governor six months ago. And I am supportin’ members of my caucus, members of my party. It has no tie to any particular vote. It’s I’m supportin’ them this year, I’ll support them every six months for as long as I’m governor. That’s my job and I’ll always do that.”
As the state budget impasse wears on, Republican Gov. Bruce Rauner today said he thinks Democratic House Speaker Michael Madigan wants the ongoing pressure of a partial government shutdown to eventually spark some action.
The governor pointed to the spring, when the state ran out of money to pay for a program that helps low-income families pay for day care before doing something.
“The reality is the speaker wanted pressure to build,” Rauner said today. “He wanted child care services to be cut and impacted and pressure folks to feel that before he would take action, as sort of a cover for taking action.
“I think that’s wrong,” Rauner said. “I think the speaker wants pressure, wants impact now before he’ll do the right thing.”
I’m not saying the governor is wrong about Madigan. He’s most likely right.
I’m just saying that Rauner’s hands ain’t exactly clean, either.
He refused to use his reduction and line-item veto powers on the budget that the Democrats sent him. Why? Likely because he would then own the cuts, and he wants the blame to fall solely on the Democrats. Also, probably because he eventually wants a tax hike and doesn’t really want huge cuts. Also, to use the veto as leverage.
* Let’s mosey down memory lane. From an August, 2014 CNN story about a video that had surfaced of a speech by gubernatorial candidate Bruce Rauner…
“I apologize but we may have to go through a little rough times and we have to do what Ronald Reagan did with the air traffic controllers,” Rauner said referencing Reagan’s decision in 1981 to fire 11,000 striking air traffic controllers.
“We sort of have to do a do-over and shut things down for a little while, that’s what we’re going to do,” Rauner said. […]
In response to the outcry, Rauner’s campaign said their candidate “has put forth a detailed plan for reviving Illinois, and shutting down state government is not among those plans.”
“But if the choice is between that and four more years of failed leadership, higher taxes, and high unemployment from Quinn and Madigan, a whole lot of Illinoisans might think less government is a pretty good idea,” spokesman Mike Schrimpf told CNN.
Republican Gov. Bruce Rauner kicked off a campaign-style statewide tour Monday by indicating he’ll try to “leverage” the state’s money woes into securing a series of pro-business changes from a General Assembly controlled by Democrats likely to fiercely oppose them.
The first stop was at Tribune Tower, where the governor sought to frame up the last seven scheduled weeks of the spring session during an appearance before the Chicago Tribune Editorial Board. The governor and legislative leaders will try to craft a new budget before the May 31 adjournment deadline against the backdrop of a projected deficit of $6 billion and Rauner calling for major cuts.
“Crisis creates opportunity. Crisis creates leverage to change … and we’ve got to use that leverage of the crisis to force structural change,” said Rauner, borrowing from a political philosophy famously coined by his friend Rahm Emanuel that “you never want a serious crisis to go to waste.”
* Gov. Rauner told WJBC Radio yesterday that he wants voters to call their Democratic legislators and ask them to tell Speaker Madigan to support his agenda. And the governor thinks it’s starting to work…
“[Speaker Madigan] pays attention to what his members say. Now, he’s got a lot of control over them, he controls the spigot of campaign cash to the members, that’s the reason they live in fear of him and he controls them.
“But you know what? If people around the state, the people of Illinois, call their state Representative, call their members of the General Assembly and say, ‘Look, we don’t like taxes, but Rauner’s willing to compromise. We don’t want an unbalanced budget and we do need reforms, term limits, redistricting reforms property tax reforms and pro-growth job creation reforms. We need those. Please, tell the Speaker to support it.’
“They’ll do it. They’ll go to the Speaker and do it. I’ve already heard that some are starting to do it and more of your listeners need to call in.”
The governor said much the same thing about how his ideas have “bipartisan support” during his press conference today.
* What all legislators most want from their leader is, mainly, protection from people like, well, Gov. Rauner…
Hundreds of guys depended on Paulie and he got a piece of everything they made. And it was tribute, just like in the old country, except they were doing it here in America.
And all they got from Paulie was protection from other guys looking to rip them off. And that’s what it’s all about. That’s what the FBI could never understand.
That what Paulie and the organization does is offer protection for people who can’t go to the cops. That’s it. That’s all it is. They’re like the police department for wiseguys.
A leader’s main political role is to protect his or her members from the other side’s attacks. This is done partially by carrying out attacks against the other side (offense is the best defense).
Regardless of whatever else you think of him, Madigan has done this so well for so many years (even under a Republican district map) that he has earned their loyalty.
* Do they fear Madigan? Yes, of course. But, mainly, they fear that he’ll withdraw his so far all but impenetrable cloak of protection.
He does lose some incumbents here and there. But nobody can say with a straight face that he didn’t give it his very best shot.
So, as long as they’re convinced that he’ll do everything he possibly can for them, and - just as importantly - as long as the governor’s economic “reform” demands continue to strike at the heart of the Democratic Party’s very existence, I doubt that there is or will be significant pressure from below.
* But that, too, is part of the problem here. Madigan’s steadfast refusal to engage much at all on Rauner’s “non-budget issues” is simply wrong-headed.
Let’s return to my Crain’s Chicago Business column for a moment…
(T)he Democrats need to realize that when state income taxes were relatively low, businesses could grudgingly overlook Illinois’ faults, such as over-regulation and “generosity” to favored groups.
That tolerance ended with the 2011 tax hike, which mostly expired in January.
If the Democrats want to restore some of that tax hike, they have to offset it with some real reforms.
Madigan and the Democrats need to wake up to this reality. The days when Democrats can over-regulate and over-reward their friends are, um, over. The tax hike, which was absolutely needed, broke the dam.
To return to my favorite genre, it’s like that NSFW scene in “Donnie Brasco” when the wiseguys are reduced to breaking open parking meters.
We need some growth in this state, man, and the Democratic Party right now isn’t proposing nearly enough (if any) ideas to help create that climate.
During past showdowns between Illinois governors and legislative leaders, the problem usually wasn’t a short supply of solutions, but a lack of political will to reach an agreement. Where there’s a will, there’s a way.
Once again, I’ve seen little willingness this summer by either side to engage in truly fruitful negotiations to end the Statehouse stalemate.
Republican Gov. Bruce Rauner continues to say he won’t talk about the budget until Democrats in the Illinois General Assembly kill off some things near and dear to their hearts: no-fault workers’ compensation, union collective bargaining, prevailing wage, etc.
Part of the problem this year is that neither side appears to see a way out of this mess. Both sides have entrenched themselves so deeply that they are not considering new ideas. Here are three suggestions to get them going.
On Friday we learned of another Madigan shenanigan. The Tribune’s Ray Long reported that, even as other grants from Springfield have been frozen, a $35 million grant will help build a new school in Madigan’s Chicago district. The online headline: “Money flows to Madigan district while state dollars tight.”
The biggest slice of the $35 million grant — $13 million — will help fund a $48 million middle school under construction in Madigan’s district to relieve overcrowding as the Hispanic population grows in his Southwest Side power base. The school will feature computer labs, music rooms, gymnasium space and athletic fields with synthetic turf, according to plans with the Chicago Public Building Commission, the project’s overseer.
An elementary school in the neighboring district of Rep. Dan Burke will get $6.5 million for roofing, masonry and other work, and $5.5 million will go to two schools in House Majority Leader Barbara Flynn Currie’s South Side district. The remaining $10 million is slated for air conditioning — an expansion of which Mayor Rahm Emanuel is pushing — in 35 schools elsewhere in Chicago. […]
The new middle school in Madigan’s district will be for grades five through eight when it opens in 2017 at 6018 S. Karlov Ave., according to CPS. The new school will give relief to Peck and Pasteur elementary schools, long identified as two of the district’s most severely overcrowded, where students sometimes learn in a cafeteria and meet with counselors in a projection room, the school district said.
At Edwards Elementary in Burke’s district, money will go toward a new roof and masonry stabilization to go with a new annex to ease crowding. The school district said the school has held 1,452 students in a space designed for 900 — 161 percent of capacity.
In Currie’s district, Kenwood Academy High School has grown significantly. The changes would shift an academic center for seventh- and eighth-graders to the nearby, previously closed Canter Middle School and open more seats at Kenwood for freshmen through seniors.
The Senate campaign of Rep. Tammy Duckworth, D-Ill., on Monday is launching its first attack on Sen. Mark Kirk, R-Ill., taking aim in a video at a series of verbal gaffes that has landed Kirk in hot water.
The video, intended to move on social media, marks a new phase in the Duckworth campaign, with the timing coming after Kirk in a WRKO interview last week called President Barack Obama ”Barack Hussein Obama.” Kirk also said in that interview Obama “wants to get nukes to Iran,” which is not true.
Kirk made the comment after the announcement last week of a deal to curb the ability of Iran to make a nuclear weapon, an agreement that Kirk has been highly critical of while it was being negotiated. Use of Obama’s middle name in this context is seen by some as a coded way to suggest Obama is a Muslim.
The video is titled “Mark Kirk’s Outrageous Statements” and also includes clips of Kirk calling a single Senate colleague a “bro with no ho,” and his comment about people being scared to drive through a black neighborhood.
For well over two centuries, U.S. senators have gleefully pressured, berated, interrupted and otherwise verbally abused witnesses who appear before them. Perhaps that’s all that Sen. Mark Kirk, R-Ill., was up to in an extraordinary grilling of Consumer Financial Protection Bureau chief Richard Cordray at a Senate Banking Committee hearing last week.
But after a series of jaw-dropping comments by Kirk in recent weeks, some may see something else in the hearing, during which Kirk suggested that Cordray’s agency is at least complicit in spying on members of Congress and U.S. Supreme Court justices.
* This Chicago Tribune editorial uses the word “reforms” four separate times…
“Speaker Madigan and the legislators he controls will leave town without a responsible, balanced budget and without any reforms while taking a pay raise for themselves,” began the communique from Rauner’s office. […]
Madigan, frantic to thwart Rauner’s reforms, instead retreats to shopworn theatrics about the dangers of the delay in passing a budget. […]
We do, though, hear from Illinoisans who don’t want to pay higher taxes until legislators accept reforms that Rauner and the voters who elected him demand. […]
Illinois is mired in slow growth in large part because other states boast reforms that Madigan stubbornly rejects.
* Why? Well, I dunno, but perhaps it’s because all but eliminating collective bargaining rights for teachers, killing off the prevailing wage and thereby drastically driving down the take-home pay of thousands of highly trained construction workers, and making it more difficult for the injured to qualify for workers’ compensation and sue corporations probably aren’t the most popular things wafting about the land.
I could be wrong.
But it’s odd that the editorial board spent all its time, energy and effort attacking a hugely unpopular politician instead of defending their own guy’s radical ideas. One is super-easy, the other ain’t.
* Yes, there’s undoubtedly an array of partisan and tinkling contest politics at play in this here shutdown showdown.
But there’s a reason why basically all Democratic (and quite a few Republican) legislators have balked at cutting a deal with the governor: Gov. Rauner’s “reforms,” in current form, are simply anathema to them.
* As I’ve said time and time again, this has been an historic year in Illinois for criminal justice reform. This is a smallish bill because it merely puts state law in compliance with a US Supreme Court case, but it’s a step…
llinois Gov. Bruce Rauner has signed legislation to end mandatory sentences of life without parole for juveniles. […]
The legislature approved the bill in response to a 2012 U. S. Supreme Court ruling that sentencing people under 18 to mandatory life without parole is unconstitutional.
The law doesn’t prevent minors from being sentenced to life in prison for serious crimes. But it allows judges to take into account certain factors when issuing a sentence. They include the juvenile’s age and maturity, any past abuse and the potential for the minor to be rehabilitated.
(T)he governor’s criminal justice reform commission quietly issued its first report earlier this month. It states that the commission is exploring a number of proposals that would have been unthinkable even a short time ago. Among them: reducing penalties for the possession of less than an ounce of hard drugs, including cocaine and heroin; increasing the number of offenses punishable with probation instead of prison; and offering tax breaks to businesses that employ ex-offenders.
House Speaker Michael Madigan told reporters earlier this month that he’d had a “frank discussion” with Gov. Bruce Rauner, “and I gave him good, solid advice.”
Word is, that advice had two parts.
First, the governor needs to find a way to get himself out of this long overtime session and state budget mess.
Second, if the governor thinks he can get himself out of this mess by somehow breaking the speaker’s will, he’s mistaken.
But the governor isn’t giving up. In fact, he has doubled down.
Rauner has made it clear that there will be no budget talks until the Democrats give in on his “Turnaround Agenda,” including his anti-union demands.
And several days after receiving Madigan’s “advice,” the governor started sending some very negative direct-mail pieces into some Democratic-controlled legislative districts.
The Rauner folks say almost 20 legislative districts were targeted last week. Both House and Senate districts were targeted. “More to come,” a Rauner guy told me.
The mailer I obtained from one of my former interns features an ominous photo of Speaker Madigan above and behind a picture of a smiling Rep. Michelle Mussman, D-Schaumburg, who won her race by 3 percentage points last year, despite optimism by Republicans that they had her on the run.
“Chicago political boss Mike Madigan wants your Rep. Michelle Mussman to kill the reforms you voted for,” claims the mailer, which displays her district office number and asks recipients to “Call Michelle Mussman now and tell her to side with taxpayers, not with Mike Madigan’s Chicago political machine.”
“Michelle Mussman should work for you, not Mike Madigan,” claims the other side of the mailer. “Tell Madigan & Mussman: No property tax hikes!” the mailer exhorts.
“Illinoisans already pay the second highest property taxes in the country, but Mike Madigan wants to use his powerful political machine and State Rep. Michelle Mussman to help him block Governor Rauner’s tax freeze reforms which benefit Illinois’ working families,” the somewhat wordy mailer claims, without, of course, noting that Rauner also wants to essentially eliminate collective bargaining rights for many heads of “working families” in that reform (see below).
“Tell Madigan & Mussman you demand term limits!” the mailer continues. “Political puppetmaster Mike Madigan has blocked reform for 44 years, protecting the status quo that put him in power. Illinois needs Michelle Mussman to stand up to Madigan to break the cycle of corruption and restore the integrity to the legislature by supporting term limits.”
“Call Michelle Mussman Right Now” the mailer commands, displaying her phone number in large letters at the bottom of the page.
The idea here is probably twofold.
First, put so much heat on Madigan’s members that they beg him to cut a deal with Rauner.
I don’t see that happening as long as the governor sticks by his anti-union demands. Madigan isn’t going to abandon the literal backbone of the Democratic Party because a few members are skittish.
The second part is likely to soften these members up for next year’s campaign, when they’ll be attacked again with the same sort of message.
That may work, but pretty much all political science studies have shown that when ad campaigns end, they tend to lose almost all of their punch. If Rauner is going to mail straight through Election Day next year, that’s a different story. But I doubt that will happen.
And there’s a real downside to this as well.
Once you attack legislators like this, they tend to “go political” right away. And since no other avenue is likely other than standing and fighting, these mailers could just entrench legislators ever deeper.
But, if nothing else, the mailers are a stark reminder that Rauner has a huge financial advantage over the Democrats.
Madigan’s three campaign committees reported raising a grand total of $618,000 in the second quarter, according to filings with the State Board of Elections. Madigan’s committees had $1.99 million sitting in the bank at the end of June 30, according to the filings.
Democratic Senate President John Cullerton’s two committees raised $592,000 and had just shy of $1.3 million on hand at the end of the quarter.
That wouldn’t be bad at all for the second quarter of an off year, but Rauner’s main campaign fund was sitting on $19.7 million at the end of the quarter. Rauner’s Turnaround Illinois PAC had an additional $2.7 million. The governor also has a “dark money” fund, but we don’t know how much is in it.
* A commenter posted this last week and I believe it’s something we should all keep in mind during the coming days, weeks, months and years…
We, the People of the State of Illinois - grateful to Almighty God for the civil, political and religious liberty which He has permitted us to enjoy and seeking His blessing upon our endeavors - in order to provide for the health, safety and welfare of the people; maintain a representative and orderly government; eliminate poverty and inequality; assure legal, social and economic justice; provide opportunity for the fullest development of the individual; insure domestic tranquility; provide for the common defense; and secure the blessings of freedom and liberty to ourselves and our posterity - do ordain and establish this Constitution for the State of Illinois.
