Illinois Scandal Taints Obama Halo

Today’s papers carry reports of the arrest of Illinois Governor Rod Blagojevich and his aide, along with reports that FBI agents were shocked at the crude talk on the wiretaps of his conversations in which he demanded that everyone who wanted something from him had to pay for the privilege.

We can anticipate that the criminal charges that have been filed (reprinted here ) will be hard fought.

The first question on most peoples’ minds has to be is the new president-elect involved and will he be drawn into this? It’s been known for a long time that Obama has had strong ties to Rezko (see, i.e.,) who is revealed yet again in these tapes as the governor’s bagman. If you wanted anything done in Chicago, it appears that you had to do it through payoffs for the governor to Rezko.

In his press conference, prosecutor Patrick Fitzgerald denied that there was anything in the criminal complaint linking Obama to the events, but Jim Lindgren at the Volokh Conspiracy finds a rather well-defined trail of crumbs back to the president-elect .

From the evening of Nov. 10 until yesterday, Blagojevich, Obama, and his transition team acted in ways that are consistent with a knowledge of Blagojevich’s bribery attempt and a rejection of that attempt. What doesn’t fit easily with the timeline is Obama’s statement yesterday.

It should be noted that it is not a crime to fail to report a bribery attempt. The federal misprision of felony statute would seem to make it a federal crime to fail to report a federal felony:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. 18 USC s.4.

But case law has conclusively determined that mere non-reporting is not enough. Active concealment or the acceptance of a benefit for concealing is required.

Yet, looking at this timeline of Blagogate, it seems quite possible that someone in the Obama Camp is either lying or at least not revealing what they know. I also find it hard to believe that Obama’s closest advisors were hiding major corruption from him, especially as he was making decisions about where to place Senate candidates such as Jarrett.

We’ve all been through this drill before; countless aides and advisers hauled before the grand jury under suspicion of process crimes — that is, not disclosing the truth of the events. Lindgren notes:  “Since by all accounts, the Obama camp refused Blagojevich’s bribery attempt, it would be extremely unwise to lie about it. Remember, it’s not the crime that trips you up; it’s the cover-up.”

There’s already a suggestion that one or more close aides of Obama will be called to testify. To have this hanging over their heads as they navigate through the difficult straits of the transition will add to the new administration’s tribulations.

Lindgren is not alone in seeing this investigation traveling up the ladder, perhaps to Obama himself. A former law enforcement officer notes that Fitzgerald first subpoenaed some Obama records relating to Rezko in 2006 because he is fully aware that Obama is part of the corrupt Chicago circle, though he is unlikely to charge Obama with any wrongdoing unless he is certain he can make it stick.

The second intriguing question to me is not the obvious attempts at bribery, such as the counts involving Mercy Hospital where Blagojevich insisted money be paid into his campaign coffers before the hospital got a permit. It is the fuzzier stuff. After all, not every political trade off is criminal bribery. If that were the case it’s hard to imagine what politics would be or what politicians could ever hope to achieve. Politics is after all, in large part, wheeling and dealing, trading something for something else, and compromising.  Professor Volokh believes this also.

The charges against Illinois Governor Rod Blagojevich are extremely serious, and much of them allege garden variety corruption, albeit on a massive scale. But I wonder whether one of the items should indeed form the basis for a corruption prosecution:

Rod Blagojevich has been intercepted conspiring to trade [his decision to appoint someone to] the senate seat [vacated by the President-elect] for particular positions that the President-elect has the power to appoint (e.g. the Secretary of Health and Human Services).

It’s true that a cabinet position has a salary attached to it, which I believe is somewhat larger than that of the Governor of Illinois. And I agree that trading a decision to appoint someone a Senator for a pot of money is classic criminal bribery.

But my sense is that political deals of the “I appoint your political ally to X and you appoint me to Y” variety are pretty commonplace, though perhaps done with more subtlety than seemed to be contemplated here. Should these deals indeed be treated as criminal bribery? Have they generally been so treated? What if the deal didn’t involve appointment-for-appointment swaps but vote-for-vote swaps or vote-for-appointment swaps – e.g., “if you vote the way I want you to vote, I’ll vote the way you want me to vote” or “if you vote the way I want you to vote, I, the Speaker of the House, will make sure that you’re appointed to the committee chairmanship you always wanted” or “if you solidly support me during this Congress, I’ll appoint you to the Cabinet”?

Here this proposed deal seems part of a broader pattern of corruption (though this also means that the prosecution would likely do just fine if they had excluded the deal, and focused on the prospect of trading the appointment for a private-sector position). But the government’s theory, I take it, would apparently treat such a deal as a federal crime – assuming the federal jurisdictional requirements are met – even if it were a standalone deal by an otherwise uncorrupt official. So that, I think, makes it worth considering how the law should treat these sorts of deals involving political appointments.

How this plays out with respect to the ability of President-elect Obama to proceed with his appointments and agenda depends, of course, not only on the prosecution. A great deal will depend on the press treatment of this affair and so far there is little evidence that the major media are yet falling off the swooning-for-Obama wagon. The New York Times, for one, continues to ignore the fact that their chosen one is up to his eyeballs in Chicago swamp mud.