Last week, President Trump said he was “strongly considering” commuting the 14-year prison sentence of former Illinois governor Rod Blagojevich, who was convicted of 18 crimes, including attempted extortion from campaign contributors, corrupt solicitation of funds, wire fraud, and lying to federal investigators. Most notably, Blagojevich was found guilty of trying to sell President Obama’s vacated Senate seat for personal gain. Commuting Blagojevich’s sentence would be unwise, not only on the merits, but also as a matter of politics.
Opinions on Blagojevich are often based on an incomplete understanding of the evidence against him and the relevant law. The case against Blagojevich is far too voluminous for a single column. A brief recap will highlight some aspects not widely discussed outside Illinois.
Just Read These Crazy Blago Quotes
In his first trial, Blagojevich was convicted only of lying to federal investigators about whether he considered campaign contributions when awarding contracts and appointments. The jury deadlocked on myriad counts.
Following a retrial on a more focused set of charges, Blagojevich was found guilty of three corrupt schemes. The first, best-known scheme involved Blagojevich’s appointment of a U.S. senator to replace then-incoming President Obama.
The feds had been tipped off about Blagojevich and were wiretapping his phone calls (he never contested the validity of the wiretaps). “I’ve got this thing,” Blagojevich infamously said on one recording, “and it’s [expletive] golden. And I’m just not giving it up for [expletive] nothing. I’m not going to do it.”
Notably, Blagojevich tried to “sell” the seat multiple ways. He sought various favors from Obama in exchange for appointing Valerie Jarrett: a cabinet appointment; a post-gubernatorial position at a foundation; or control of a new social justice group bankrolled to the tune of $10 million. Obama declined, prompting Blagojevich to rant, “They’re not willing to give me anything except appreciation. [Expletive] them.”
He then turned to supporters of then-Rep. Jesse Jackson, Jr., offering the appointment in return for a $1.5 million “campaign contribution,” although Blagojevich had already decided not to run for re-election. He broke off negotiations only upon learning of the wiretaps.
In the second scheme, Blagojevich’s intermediaries told lobbyists for Children’s Memorial Hospital he would approve an extra $8 to $10 million of Medicaid reimbursements in exchange for a “campaign contribution” of $50,000. He approved the rate increase, only to rescind it pending receipt of the kickback.
In the third scheme, Blagojevich’s intermediaries told a part-owner of two racetracks he would not sign a pending bill taxing casinos (for the benefit of racetracks) until he received a $100,000 “campaign” pledge. Blagojevich was arrested before he could sign the bill.
Charged with a Veritable Life of Extortion
He was also charged in two additional schemes. The fourth scheme involved the attempted extortion of a highway contractor. In the fifth scheme, Blagojevich threatened to block a $2 million grant for a school in the district of then-Rep. Rahm Emanuel unless his brother, Hollywood superagent Ari Emanuel, held a Blagojevich fundraiser. Although Blagojevich was not found guilty on these latter charges, a president certainly could consider it when deciding whether to exercise his plenary pardon power.
The U.S. Court of Appeals for the Seventh Circuit tossed five of Blagojevich’s convictions dealing with the Senate seat. The court ruled “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.” The jury instructions permitted a guilty verdict even if all Blagojevich had done was ask for a cabinet post in return for appointing Jarrett. The appellate court ruled this would be improper.
In remanding the case for resentencing, the Seventh Circuit rejected Blagojevich’s arguments that his sentence was excessive. The district judge had concluded the sentencing guidelines recommended a range of 360 months to life, but imposed a sentence of 168 months. The Seventh Circuit concluded any error in the judge’s calculation went in Blagojevich’s favor.
The district judge gave Blagojevich reductions for accepting responsibility, “even though he pleaded not guilty, denied culpability at two lengthy trials, and even now contends that the evidence is insufficient on every count and that he should have been acquitted across the board.” The appellate court called this “the antithesis of accepting responsibility.”
The district judge also did not count the entire $1.5 million demand, despite the figure being recorded on tape. The Seventh Circuit further affirmed a sentence enhancement based on Blagojevich leading an extensive criminal organization (one member, fundraiser Chris Kelly, committed suicide in 2009).
Judge: Stiff Sentence Warranted
On remand, the district court reaffirmed the 168-month sentence. The judge recognized it was a stiff sentence for a non-violent crime and Blagojevich’s impeachment conviction barred him from seeking public office. Nevertheless, the judge concluded the sentence was warranted by the gravity of the offenses and the need to deter other public officials from acting like Blagojevich.
The Seventh Circuit affirmed this decision, noting that the judge, “who presided over two lengthy trials, was free to consider all of the evidence even though the prosecutor elected not to retry the five counts” involving the Senate seat. (The guidelines allow consideration of “relevant conduct” by a preponderance of the evidence standard.)
Given Blagojevich’s history, the case for commuting his sentence collapses. Federal felons must serve at least 85 percent of their sentences, which would make Blagojevich eligible for early release after 12 years; a commutation would free him after only seven years. Blagojevich already benefits from unwarranted reductions granted by the trial judge.
The concern that people not be unfairly persecuted with “process crimes” like lying to investigators is absent from this case. Blagojevich was ultimately convicted of many of the crimes about which he lied to the feds.
Corruption Deterrence Sorely Needed
The legitimate concern that we not criminalize mere political logrolling was addressed by the Seventh Circuit. Demanding $1.5 million for a Senate seat is not ordinary political deal-making. Trying to shake down a racetrack investor is not politics as usual; it is attempted extortion. Trying to shake down a children’s hospital is not logrolling; it is the Chicago Way.
The Trump Justice Department is trying to stamp out rampant corruption.
Blagojevich’s sentence was intended to deter further corruption in Illinois. His predecessor, Gov. George Ryan, was convicted in a driver’s-licenses-for-bribes scandal and was sentenced to six and one-half years, which obviously failed to deter Blagojevich. Four of the past seven Illinois governors have gone to prison. Illinois is the third-most corrupt state in the nation, costing Illinois taxpayers an estimated $550 million every year.
The Trump Justice Department is trying to stamp out rampant corruption. Prosecutors have charged Chicago Alderman Ed Burke—the most powerful city official short of the mayor—with 19 offenses, including racketeering and bribery. State Sen. Tom Cullerton, a cousin to Illinois Senate President John Cullerton, was indicted on 40 counts of embezzlement charges earlier this month.
Federal agents are also investigating the inner circle of Illinois House Speaker Mike Madigan, the longest-serving House speaker in modern U.S. history and arguably more powerful than the governor. By commuting Blagojevich’s sentence, the president would send the wrong message at the wrong time to his own team.
What Is Trump Thinking?
President Trump seems sympathetic to Blagojevich in part because he was prosecuted by ex-FBI director Jim Comey’s gang of “sleazebags.” Comey was in the private sector during the Blagojevich prosecution, but Robert Mueller was FBI director and one of the prosecutors was longtime Comey pal Patrick Fitzgerald.
No one associated with Comey caused those votes.
However, Blagojevich’s case lacks misconduct of the sort alleged against Comey and others in the course of the so-called Trump-Russia investigation. Moreover, the district judge imposed a sentence below the 15-20 years prosecutors sought.
Furthermore, the Illinois House of Representatives impeached Blagojevich by a vote of 114-1-1, later confirmed by a 117-1 vote (the sole dissenting vote was cast by Blagojevich’s sister-in-law). The Illinois Senate then convicted him by a unanimous vote of 59-0. No one associated with Comey caused those votes.
If one believes The New York Times, Jared Kushner has championed commutation because it would appeal to some high-profile Democrats. Senate Democratic Whip Dick Durbin has supported Blagojevich, but he also urged President George W. Bush to commute Ryan’s sentence. Durbin’s bipartisan softness on corruption is hardly persuasive.
A Precursor to Pardon for Another Corruptster
The Rev. Jesse Jackson and his son wrote a letter to the president supporting a commuted sentence and a full pardon. But if you have read this far, you might wonder how Blagojevich got into a position to pitch Jackson Junior’s supporters for $1.5 million.
If the president commutes Blagojevich’s sentence, the Jacksons would be on the White House doorstep seeking a pardon within days.
Also recall that Junior admitted to violating federal campaign law by using campaign funds to make personal purchases (including a Michael Jackson fedora and cashmere capes). Junior pleaded guilty to wire and mail fraud in 2013. Some, undoubtedly including the Jacksons, would argue that Junior got a worse sentence than Blagojevich did.
If the president commutes Blagojevich’s sentence, the Jacksons would be on the White House doorstep seeking a pardon within days, if not moments. If the president did not oblige them, the reverend would sprint to the nearest TV camera to shout about how Trump helped the white man and stiffed the black man. This is an entirely avoidable headache.
The reality is there is no mass Democratic sentiment to free Blagojevich. President Trump would not be praised for it. To the contrary, Democrats seeking Trump’s impeachment would wrap Blagojevich around his neck. They would say the commutation is designed to send the message that corrupt politicians with experience on “The Apprentice” are to be let off the hook.
In sum, commuting Blagojevich’s sentence has virtually no upside for President Trump and multiple downsides, both on the merits and as a matter of politics. The president considered giving Blagojevich a commutation or pardon in 2018, but did not do so. Nothing has changed that would warrant a different decision now.
Warren Henry is the nom de plume of an attorney practicing in the State of Illinois.