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* UPDATED x1 * He knew it was illegal when he did it

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* There’s little doubt that the US Attorney’s office did a really poor job at oral arguments last week in Rod Blagojevich’s appeal. Listen to the whole thing if you can…

Click to listen

That person just wasn’t prepared.

* AP…

During an hour-long hearing that was sometimes contentious, three judges of the U.S. 7th Circuit Court of Appeals frequently interrupted a prosecutor and pressed her to explain just how the 56-year-old Illinois Democrat’s actions had strayed into criminality. […]

Blagojevich’s attorneys want the court to toss his corruption convictions or at least agree to slash years off his 14-year prison term, which is one of the longest ever imposed for political corruption in a state where four of the last seven governors have ended up in prison.

In seeking a cabinet post - possibly as secretary of health and human services - in exchange for a Senate appointment, Blagojevich was merely seeking to further political causes he’d long championed, including health care, Blagojevich attorney Leonard Goodman told judges.

“Mr. Blagojevich’s defense is, ‘I thought this was (legal) political horse trading,’” said Goodman, adding that Blagojevich was an avid student of political history and was therefore conscious of not crossing that line. “This wasn’t some backroom deal.”

* OK, that’s total bunk. He knew that at least some of what he was doing could very well be illegal. How do we know that? The tapes.

From a December 4th conversation about appointing Jesse Jackson, Jr. to Obama’s Senate seat…

ROBERT BLAGOJEVICH: Yeah. Well I would think if you do appoint him and I don’t know who the money centers are in the black community, but you gotta get me focused on them or somebody focused on them…

BLAGOJEVICH: What, here’s, here’s what you’ve got to do. You gotta talk to Raghu. You gotta call him and say hey, look. You know, Jesse Jr. you know, I think a Ro-, Rod’s meeting with him at some point. Very much a real-, a realistic, and you should just let him know, you know, the Durbins and the others behind the scenes, they don’t want him. They’re afraid.

“Raghu” is Raghu Nayak, a major fundraiser for both Jackson, Jr. and Blagojevich…

Federal authorities alleged Nayak offered to raise up to $6 million in campaign cash for Blagojevich if he used his power to name Jackson as President Barack Obama’s replacement in the U.S. Senate after the 2008 election.

* Rod knew this deal could be a very big problem. From the same conversation with his brother…

BLAGOJEVICH: You understand? Now you gotta be careful how you express that. And assume everybody’s listening, the whole world’s listening.

ROBERT BLAGOJEVICH: Right.

BLAGOJEVICH: You hear me?

* From the very next morning, the same day the Tribune ran a story about how Blagojevich pal Wyma was cooperating with the feds…

ROBERT BLAGOJEVICH: I got a meeting today at one

BLAGOJEVICH: Raghu.

ROBERT BLAGOJEVICH: Yeah.

BLAGOJEVICH: Yeah. I don’t know if you should do it.

ROBERT BLAGOJEVICH: Right.

BLAGOJEVICH: Yeah.

ROBERT BLAGOJEVICH: So is that a definitive no?

BLAGOJEVICH: Probably, yeah. Give me a little while, but I’m sure it’s a no. Just, you know, just re-, say we’ll see you tomorrow and Harish Bhatt and all that stuff, you know what I’m sayin’?

ROBERT BLAGOJEVICH: Yeah. (PAUSE)

ROBERT BLAGOJEVICH: Okay.

BLAGOJEVICH: Okay.

ROBERT BLAGOJEVICH: Alright.

BLAGOJEVICH: Yeah and I’m sure it’s gonna be a no.

ROBERT BLAGOJEVICH: Okay. Very good.

BLAGOJEVICH: In fact, just do it. Go ahead just call him and say, well, it’s too obvious right now ’cause of this story.

* Later that morning…

ROBERT BLAGOJEVICH: Alright just to let you know what’s goin’ on today we got this Hispanic event.

BLAGOJEVICH: Yeah I know, I know all that. So, yeah, undo your Raghu thing.

ROBERT BLAGOJEVICH: Ah, done.

BLAGOJEVICH: Yeah.

ROBERT BLAGOJEVICH: Done.

* Back to Friday’s hearing…

With some passion behind his remarks, [former chief judge of the U.S. 7th Circuit Court of Appeals, the conservative Frank Easterbrook] asked if there was “any criminal conviction in U.S. history” other than Blagojevich’s in which a politician was convicted for trying to trade one job for another.

“I’m aware of none,” responded the government’s Debra Bonamici.

Her answer seemed to hang in the air for a bit as courtroom observers took that in.

Easterbrook described how in the run-up to the 1952 presidential election, then-California Gov. Earl Warren offered to use his post to “deliver California” for Eisenhower in return for a seat on the Supreme Court. It was a deal that Eisenhower eventually honored.

“If I understand your position, Earl Warren should have gone to prison, Dwight Eisenhower should have gone to prison,” Easterbrook implored. “Can that possibly be right?”

Her eventual answer was nuanced, including explaining the allegations included Blagojevich’s attempt to have a 501c (4) set up for him to head if he appointed Valerie Jarrett to the U.S. Senate.

I happen to mostly agree with Easterbrook here. But the prosecutor should’ve focused on some of the more clear-cut issues, like the shakedown of a children’s hospital for a big campaign contribution. He ordered a beneficial state rule held up until he got his money. That’s clearly illegal.

*** UPDATE *** Wordslinger blasts Easterbrook’s comparison to the Eisenhower situation…

That’s nonsense. Show me, in any written history, that Warren made such an “offer” and that Eisenhower agreed to “honor” it.

As it was, 77 of the 90-member California delegation voted for Warren at the convention, so Warren hardly “delivered” the state to Ike.

How the U.S. attorney could let that fiction slide just shows how unprepared the office was.

The facts:

In 1952, Gov. Warren ran as a favorite son, and thought he had the 90-vote California delegation sewn up. In truth, Sen. Nixon spent the train ride from Sacramento to Chicago picking off a handful of Warren delegates for Ike.

Because of this, in part, Ike’s biggest backers, Gov. Dewey and Gen. Clay, recommended him for VP. Nixon was also considered an attractive VP candidate for his youth, war service and for being from the booming West. In addition, he served as a bridge between the right-wing isolationists (for the Hiss case) and the moderate East Coast internationalists (for his support of NATO).

After Ike was elected president, he nominated Warren for solicitor general, with the idea of appointing him to the next open Supreme Court seat, which he did.

But that was to keep Warren from being a primary rival in 1956 and to placate the liberal wing of the GOP, just as Lincoln did with Salmon Chase and the Radical Republicans in 1864.

posted by Rich Miller
Monday, Dec 16, 13 @ 12:40 pm

Comments

There’s a lot of federal interest in the scope of the phrase, “honest services,” and I would understand if the judges want to understand the meaning of the law in this case, while they are also aware of how their ruling will be seen in other contexts.

Comment by Elo Kiddies Monday, Dec 16, 13 @ 12:48 pm
“He know it was illegal when he did it”…kind of like the current crop of legislators who voted for SB1…

Comment by Anonymous Monday, Dec 16, 13 @ 12:53 pm
Sorry, that was me above.

Comment by PublicServant Monday, Dec 16, 13 @ 12:53 pm
I agree that the AUSA could have had a better answer (though the problem was in indicting and arguing the Senate seat for HHS job trade, instead of just focusing on Senate seat for money). But she did come back and say that the damage was limited to two counts — and the judges seemed to accept that.

Blago’s lawyer had an even worse argument, though his rebuttal was better than his opening.

Prediction on outcome (always dangerous), conviction upheld except on two counts; remanded for resentencing.

Comment by Anonymous Monday, Dec 16, 13 @ 12:55 pm
In oral arguments you don’t always get to focus on what you want to focus on. You have to address the questions from the bench. I assume on those “clear cut” issues there are few if any legal questions to be addressed.

Comment by Madame Defarge Monday, Dec 16, 13 @ 12:56 pm
he won’t get off on all counts, but the sentence from Zagel….who has his own very political background with the State of Illinois, so, ironic….was excessive and should be lowered.

Comment by Amalia Monday, Dec 16, 13 @ 12:58 pm
Blago was a disgrace and fully deserved to kicked out of office, but 14 years was way over the top.

Comment by slow down Monday, Dec 16, 13 @ 1:03 pm
–Easterbrook described how in the run-up to the 1952 presidential election, then-California Gov. Earl Warren offered to use his post to “deliver California” for Eisenhower in return for a seat on the Supreme Court. It was a deal that Eisenhower eventually honored.

“If I understand your position, Earl Warren should have gone to prison, Dwight Eisenhower should have gone to prison,” Easterbrook implored. “Can that possibly be right?”–

That’s nonsense. Show me, in any written history, that Warren made such an “offer” and that Eisenhower agreed to “honor” it.

As it was, 77 of the 90-member California delegation voted for Warren at the convention, so Warren hardly “delivered” the state to Ike.

How the U.S. attorney could let that fiction slide just shows how unprepared the office was.

The facts:

In 1952, Gov. Warren ran as a favorite son, and thought he had the 90-vote California delegation sewn up. In truth, Sen. Nixon spent the train ride from Sacramento to Chicago picking off a handful of Warren delegates for Ike.

Because of this, in part, Ike’s biggest backers, Gov. Dewey and Gen. Clay, recommended him for VP. Nixon was also considered an attractive VP candidate for his youth, war service and for being from the booming West. In addition, he served as a bridge between the right-wing isolationists (for the Hiss case) and the moderate East Coast internationalists (for his support of NATO).

After Ike was elected president, he nominated Warren for solicitor general, with the idea of appointing him to the next open Supreme Court seat, which he did.

But that was to keep Warren from being a primary rival in 1956 and to placate the liberal wing of the GOP, just as Lincoln did with Salmon Chase and the Radical Republicans in 1864.

Comment by wordslinger Monday, Dec 16, 13 @ 1:16 pm
Is 14 years over the top when the previous governor was still serving the rest of his sentence for a corruption conviction? I mean what other options does a judge have at sentencing other than increasing jail time to drive home the point that this type of “horse trading” is illegal.

Comment by Leave a Light on George Monday, Dec 16, 13 @ 1:25 pm
Why do I feel like I just got 3 hours credit for a class entitled “Politics and then ‘Real Politics 401′…”

Great stuff, the back stories are what make the outcomes interesting. Otherwise, they would just be outcomes.

Comment by Oswego Willy Monday, Dec 16, 13 @ 1:27 pm
Yes you are right the prosecutor didn’t respond very strategically.

However, to the Eisenhower point - yes. If you trade political favors for governmental ones - quid pro quo - yes that is illegal and it should be.

Of course it happens - but the outright use of public goods in exchange for political goods is what is the fundamental problem here. That’s Blago’s fundamental problem. He didn’t just reward supporters or people who he likes. He tried to extract actual dollars in exchange for a public position appointment.

Comment by Siriusly Monday, Dec 16, 13 @ 1:27 pm
Nice catch, word.

Tough for the feds when the original team moves on to bigger and better things and the folks left behind have to hit cleanup.

Comment by Arthur Andersen Monday, Dec 16, 13 @ 1:29 pm
I think a better response to the Judge would have been to note that Blago was trying to get cold hard cash for the job….

Comment by Ghost Monday, Dec 16, 13 @ 1:45 pm
The 1952 race was very interesting on a lot of levels. The election cycle was a little different back then, lol.

Eisenhower didn’t announce his candidacy until June, after he resigned his NATO command and returned to the United States from Paris. The GOP convention was in July.

The frontrunner, Sen. Taft, had promised to name recently fired Gen. MacArthur as his running mate if nominated.

Taft died unexpectedly and suddenly in 1953. If he had beaten Stevenson, MacArthur would have been president.

And that would have been interesting, to say the least.

Comment by wordslinger Monday, Dec 16, 13 @ 1:49 pm
Wordslinger’s analysis is wrong. In chasing his “favorite son” status prior to the GOP convention, Warren was leveraging a commonly used tactic: his status as the “favorite son” of the California delegation to the GOP convention put him in the precise position of being able to deliver the entire delegation to his candidate of choice - in this instance, Ike.

using a tactic that was very commonly used:

Comment by Chicago Publius Monday, Dec 16, 13 @ 1:56 pm
=== being able to deliver the entire delegation to his candidate of choice===

Except, apparently, he didn’t.

Comment by Rich Miller Monday, Dec 16, 13 @ 1:58 pm
Let’s separate the question here an not lump all acts into one charge.

Put aside for the moment, the JJJ offer and focus on what Easterbrook questioned - the trading of political appointments. The question of criminality is important and should not turn on what actually happened between Warren and Ike, rather, the question is whether trades are generally accepted and practiced in politics? The fact that there has never been a conviction for such acts before , surely can’t be because it was never done before. That has always been a damning weakness in this case. And once the jury was instructed that any trade is a crime regardless of whether Blago thought it was, he surely wasn’t going to get the benefit of the doubt on any other charges.

Comment by Bogart Monday, Dec 16, 13 @ 2:02 pm
A more complicated version of the Warren - Eisenhower story:

http://books.google.com/books?id=7zNAzo_xJEMC&pg=PA5&lpg=PA5&dq=brownell+eisenhower+warren+california+delegation&source=bl&ots=pVZ3aqcqJO&sig=cQnjVdUx_BLnV8A7iIefAB0Jc0U&hl=en&sa=X&ei=NluvUvvyNubn2AW3_YC4CQ&ved=0CC8Q6AEwAQ#v=onepage&q=brownell%20eisenhower%20warren%20california%20delegation&f=false

Comment by Anonymous Monday, Dec 16, 13 @ 2:02 pm
–his status as the “favorite son” of the California delegation to the GOP convention put him in the precise position of being able to deliver the entire delegation to his candidate of choice - in this instance, Ike.–

It didn’t happen. That’s the point.

Comment by wordslinger Monday, Dec 16, 13 @ 2:03 pm
I was really hoping Blago’s entire appeal would be based on his request to “play the tapes”

Comment by Siriusly Monday, Dec 16, 13 @ 2:16 pm
That Earl Warren was the guy they built Alcatraz for; hardly a plum for the Liberal Republican Establishment. It wasn’t until his swearing in onto the Supreme Court that Earl Warren did a complete philosophical U-Turn and became the Liberal Justice for the ages. In truth, SC Justices are far more vetted today than they were in the past. I can’t think of one in the past 5 or 6 administrations that wasn’t already a judge and not a politico. Harriett Myers is the only one that comes to mind that was nominated who was not a sitting judge somewhere.

Comment by A guy... Monday, Dec 16, 13 @ 2:16 pm
Anon, 2:02, thanks for the link. I didn’t want to get into the complications of seating the other state delegations, which is even more Byzanine than the account here.

Accounts differ as to Warren’s discussion with Clay, but your link supports the main contention in relation to Blago’s appeal: there was no quid pro quo Warren “offer” that Eisenhower “honored” for a Supreme Court seat.

Comment by wordslinger Monday, Dec 16, 13 @ 2:20 pm
I have always believed Rod thought that appointing a Senator was the same as endorsing a candidate for Senator. One is an official government act, and the other is political, but he didn’t understand that difference.

Comment by Just Me Monday, Dec 16, 13 @ 3:24 pm
@Leave a Light on George,=what other options does a judge have=,the judge has wide range of options. From probation, (one extreme) to 14 years(the other extreme). Blago, while governor, poked the state judges in the eye with a stick (tried to cut their 3% COLA pay raises. While this was not affecting a FEDERAL judge, the federal and state judges are friends and generally hold a grudge against politicians attacking judges. They also remember who their political friends are. Everyone is treated equally, just some more equal then others. Compare “Fast Eddie V” to Blago.

Comment by DuPage Monday, Dec 16, 13 @ 3:31 pm
–I have always believed Rod thought that appointing a Senator was the same as endorsing a candidate for Senator–

C’mon, man. Was he shopping endorsements for cash and jobs?

Comment by wordslinger Monday, Dec 16, 13 @ 3:32 pm
===Was he shopping endorsements for cash and jobs? ===

No. That was JJJ’s schtick.

Comment by Rich Miller Monday, Dec 16, 13 @ 3:34 pm
I think the difference between cold hard bribes and trading favors is that favors can never really be qui pro quo(especially when they are not followed through with or let to play out) there is a level of hope, which I think is part of the disappointment and anger we see from Blogo when he says he just has to accept gratitude and hope for an appointment down the road. And then with the Jackson thing, I don’t know the law on that but I suspect that he could take the campaign and then appoint Barracks choice then since he didn’t follow through would there still be an attempted conspiracy?

Comment by Kev Monday, Dec 16, 13 @ 3:38 pm
if that second point was his intent

Comment by Kev Monday, Dec 16, 13 @ 3:43 pm
not whether he actually followed through with it

Comment by Kev Monday, Dec 16, 13 @ 3:44 pm
without regard to what Earl Warren did or didn’t do- the Honest Services mail fraud provision wasn’t part of Title 18 at the time- assuming there is any factual basis to Easterbrook’s concern, his scenario wasn’t a crime in 1952

Comment by Sue Monday, Dec 16, 13 @ 4:43 pm
==Harriett Myers is the only one that comes to mind that was nominated who was not a sitting judge somewhere.==

Elena Kagan wasn’t a judge. She was Solicitor General when she was nominated.

Comment by Demoralized Monday, Dec 16, 13 @ 4:50 pm
after listening to the transcript it is clear that the Court may want to issue an advisory opinion on the appointment issue - Blago is toast without regard to whether this single issue is determined to be a crime or not

Comment by Sue Monday, Dec 16, 13 @ 5:10 pm
in retrospect- does anyone think that Blagojevich would have done worse in the HHS role then Kathleen Sebelius- Maybe Obamacare would have been brilliantly executed under Rod

Comment by Sue Monday, Dec 16, 13 @ 5:16 pm
===Court may want to issue an advisory opinion===

That isn’t done.

Comment by Rich Miller Monday, Dec 16, 13 @ 5:42 pm
Sue, that is funny to contemplate. you’re right if Blago was appointed to HHS he would be right in the middle of this current situation. he may have wanted to rename Obamacare with All Kids though. or All Humans.

Comment by PoolGuy Monday, Dec 16, 13 @ 7:10 pm
–in retrospect- does anyone think that Blagojevich would have done worse in the HHS role then Kathleen Sebelius- Maybe Obamacare would have been brilliantly executed under –

Speaking only for myself, when I’m thinking, in retrospect, I don’t make any connections among Blago, Sebellus or Obamacare at all.

You might be on to something, Sue. Or on something. Hard to say.

But since you bring it up, does anyone really know where Blago was when the consulate was attacked in Benghazi? Federal custody? Like, ObamaCustody!

Comment by wordslinger Monday, Dec 16, 13 @ 8:44 pm
If Easterbrook wanted to draw from history, he would have done better with the election of 1824 rather than 1952.

Jackson won a plurality of both the popular and electoral votes, with JQ Adams second and Crawford third.

Under the Constitution, the election went to the House. Speaker Clay threw his support behind Adams, who was elected president. Jackson howled.

It was considered the original “corrupt bargain” as it positioned Clay to become the next president. Until then, every president since Jefferson had served as Secretary of State.

Jackson certainly would have testified against Adams and Clay (if he didn’t shoot them first). I doubt anyone would have against Ike and Warren.

Comment by wordslinger Monday, Dec 16, 13 @ 10:17 pm