Rod Blagojevich has always been more of a goof than a crook, as we said four years ago, and 14 years in prison is pretty harsh justice for being a goof.
But on Tuesday, a federal appellate court threw out five of the 18 criminal counts on which the former governor was convicted and sent his case back to the lower court. It’s highly unlikely Blagojevich will be retired on the five counts; the court is expected to move directly to resentencing. A somewhat shorter prison stay that still fully reflects the serious crimes he did commit would be more appropriate. We say that knowing the odds of that happening are not great.
It is important to stress that Tuesday’s ruling by no means exonerates Blagojevich. Our state’s favorite Elvis impersonator remains a properly convicted felon, one who tried to blackmail a hospital and a racetrack owner to make big campaign donations, among other half-baked crimes. As the court noted in a 23-page ruling, “The evidence, much of it from Blagojevich’s own mouth, is overwhelming.”
But the proper sentence in this case should have been stiff enough to sufficiently punish, without going overboard, and serve as a deterrent to other would-be scammers, without piling on. Even Gov. George Ryan, convicted of far more serious bribe-taking schemes, served only 6 ½ years in prison.
The Seventh Circuit Appellate Court, in a decision written by Judge Frank H. Easterbook, essentially accuses the U.S. attorney’s office in Chicago of prosecutorial overreach, saying it redefined the everyday practice in politics of logrolling — I’ll do a political favor for you if you do one for me — as a felonious act.
In his instructions, the appellate court said, federal District Judge James B. Zagel then permitted the jury to consider this sort of logrolling as sufficient grounds for a conviction. Specifically, Blagojevich had been accused of demanding a cabinet job in President Barack Obama’s administration in return for appointing a friend of the president’s, Valerie Jarrett, to a Senate seat.
The appellate court all but mocked the prosecutors for criminalizing the usual exchange of political favors. Judge Easterbrook pointed out that Secretary of State John Kerry probably was appointed to that position in part because of political favors he had done for Obama, and it has long been believed that Earl Warren was appointed to the U.S. Supreme Court by President Dwight Eisenhower as a reward for delivering the California delegation to Eisenhower at the 1952 Republican convention.
“If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison,” Easterbrook wrote.
It may well be, the appellate court noted, that the jury did not convict on the basis of the logrolling charge. The jury may have convicted on the basis that Blagojevich asked the president for a private-sector job or money, which would be real extortion, not logrolling. But there is no way to know, the court ruled, so the criminal counts related to the Cabinet post had to be thrown out.
Now here’s a suggestion for Blagojevich, who told his disappointed wife on Tuesday that he’s “optimistic” justice will eventually prevail: Do yourself a big favor and admit your guilt. Your 168-month sentence is still within the lawful range for the crimes for which you remain convicted. And no judge is likely to feel sympathy for a defendant who, against all the evidence, insists he was railroaded.
As Easterbrook wrote, prosecutors never produced proof that Blagojevich made an explicit demand when engaging in his extortion schemes, but such “magic words” are not necessary. His words and actions were nevertheless clear.
“’Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion,” Easterbrook wrote, “just as it can furnish the gist of a Monty Python sketch.”
The sooner Blagojevich ‘fesses up, the sooner he may be coming home to Chicago.
Follow the Editorial Board on Twitter: Follow @csteditorials