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Wednesday, December 10, 2008

When is it illegal for a politician to sell government jobs?

The answer surely must be that it depends on how the money is used. Politicians who raise money on behalf of a campaign or party or a cause are not corrupt: They are good fund-raisers. Nancy Pelosi and Howard Dean owe much of their reputation for political savvy to their fund-raising acumen. Presumably, political leaders reward people who do a good job at fund-raising with political appointments. Indeed, some jobs -- e.g., the Ambassador to the Bahamas -- have traditionally been given to Party loyalists who raise lots of money for the incumbent President's political party.

I take these propositions to be uncontroversial: Patronage politics are not a federal crime. So imagine my surprise when I learn that the case against Governor Blagojevich rests, in part, on a tape-recorded conversation, in which he pondered whether to appoint (in the language of the indictment) "Candidate Number 5" to the U.S. Senate because that candidate -- allegedly Jesse Jackson, Jr. -- promised to raise a million dollars.

Does the indictment against Blagojevich rest on the theory that rewarding fund-raisers with plum jobs constitutes an instance of mail fraud -- that is, depriving the people of Illinois of their intangible right to honest services? Or does the case rest entirely on the allegations that Blagojevich demanded money for his personal use? If the former is the case, then the indictment is an extraordinary power grab by a U.S. Attorney. If the latter, then there is nothing in the tape revealed so far that could form the slightest basis for a prosecution of Jesse Jackson, Jr. for offering a bribe in violation of 18 U.S.C. §1346.

Posted by Rick Hills on December 10, 2008 at 09:56 PM | Permalink


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unfortunately for blago the honest services theory of mail fraud is incoherent, especially if the 7th circuit doesn't require some kind of predicate state law violation, as some circuits do. scotus was right to reject this garbage doctrine and congress (biden, ironically?) was wrong to put it back.

completely undefined doctrines like this are invitations for precisely the kind of power grab this is by fitzgerald, who obviously is looking forward to some ron howard movie based on his celestial career as a Truthfinder. federally criminalizing phone calls made by state governors is kind of a shocking federalism problem when you think about it.

on the hand, the indictment is a hilarious read and blago is a huge turd. as disgusting federal incursions into state government go, this one was at least entertaining and it couldn't happen to a less likable guy.

Posted by: Vincent Kennedy McMahon | Dec 10, 2008 10:17:42 PM

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Posted by: fitzgeralds | Dec 11, 2008 4:41:14 AM

"[T]here is nothing in the tape revealed so far that could form the slightest basis for a prosecution of Jesse Jackson, Jr. for offering a bribe in violation of 18 U.S.C. §1346."

I don't mean to be rude, but my principal response, as an attorney who has not even done much in the way of criminal work is: "Duh!" That is because the only window we have right now into the mountain of evidence that the FBI collected is an affidavit in support of an arrest warrant against Blagojevich and Harris -- not against Repreetnative Jackson. I should not need to point out to a law professor that the purpose of such a document is not to reveal evidence inculpating other persons against whom no arrest warrant is sought. This is akin to the convention in indictments whereby those not indicted (or not yet indicted) are referred to by pseudonyms and care is taken by the prosecutor not to include gratuitous allegations in the indictment that inclupate another who may be, for present purposes, an "innocent accused."

Stated otherwise, it is not the purpose of the FBI affidavit to point a finger at anyone but Blagojevich and Harris, so it should be unsurprising that there is no infromation that would necessarily support a charge against any others. These kinds of documents, in complex cases that might involve a wide conspiracy, are usually written (if they are prepared with care) precisely in order to avoid incriminating anyone other than the person or persons who are at issue.

All that said, the matters laid out in the affidavit with respect to Candidate 5 are rather suggestive that Candidate 5 was actively participating in the auction -- certainly more so than with, say, candidate 1. I'm not suggesting that it's clear that Representative Jackson was playing along (but if not, there are some rogue "intermediaries" out there). It's remotely possible that it's solely a one--sided attempted conspiracy -- i.e., that nobody decided to play ball with Blagojevich. I find that possiblity quite remote. And judging by the dribs and drabs in the affidavit, it appears likely that Representative Jackson -- or someone purporting to speak on his behalf -- did.

Let's put it this way, would you feel safe and secure if you read that affidavit and deduced that you wre Candidate 5?

Posted by: Sebastian Dangerfield | Dec 11, 2008 3:34:05 PM

I think that Sebastian Dangerfield might miss my drift (for which lack of clarity, of course, I take responsibility): If Candidate Number 5 did not offer any bribe, then it is hard to argue that Blagojevich solicited one. The allegations regarding Candidate Number 5 are, in short, irrelevant (or should be) to both Blagojevich and the unindicted co-conspirator. The reason is that either an offer or a solicitation to "raise money," absent some further allegation that the money was being used for personal as opposed to campaign purposes, is not properly a violation of the mail fraud statute. Instead, it is normal -- albeit to those who dislike patronage, unseemly -- political behavior that is (or ought to be) off limits to federal criminal law.

Imagine if the indictment alleged that "Candidate Number 5 promised to vote for the Democratic platform if appointed to the Senate." Had Fitzgerald included such a statement in an indictment, we would properly regard Fitzgerald as a lunatic: Trading jobs for promises to support a political party with votes is not illegal. How is it different to trade jobs for cash, when the cash is used to help a political party?

Posted by: Rick Hills | Dec 11, 2008 4:20:12 PM

Whether or not a criminal charge is warranted, immediate impeachment certainly is.

Posted by: Andrew | Dec 11, 2008 5:08:32 PM

Thanks for the clarification -- and no need to take responsibility for any misreading of mine. But I think I would still take issue: You say, "If Candidate Number 5 did not offer any bribe, then it is hard to argue that Blagojevich solicited one." Untrue. Certainly Blagojevich can be guilty of soliciting a bribe without the intended briber actually offering a bribe to the would-be bribee. That's the whole idea of an inchoate crime. It's solicitation or attempt, even if Candidate 5 responded by saying: "Sir, I can't believe that you just asked for a half million dollar downpayment on future bribes in order to put me higher on the list of senate-seat suitors. I bid you good day." Blagojevich committed a crime, just as every poor john who offered to pay an undercover police officer for sex did and every one every schlub who tried to buy drugs from a narcotics officer did.

Beyond that, I don't think the "personal v. campaign use" idea is the touchstone at all. If officeholder X says, "I will appoint you to appointive position Y if you donate money to my campaign committee" officeholder X has clearly solicited a bribe. If a legislator solicits campaign donations in exchange for pushing favorable legislation, that also is a bribe (or else Duke Cunningham should be walking among us).

It takes a real cynic to say that there would be nothing wrong with selling a vote for campaign contributions -- simply because (a) lots of people do it, or (b) lots of implicit quid pro quos happen every day.

You're certainly right that an indictment alleging that "Candidate Number 5 promised to vote for the Democratic platform if appointed to the Senate" should be dismissed. But "I want [campaign donations] [a new Cadillac] [a sweet mortgage] [a killer deal on a yacht] [etc.] in exchange for an official act" certainly constitutes the solicitatin of a bribe.

Posted by: Sebastian Dangerfield | Dec 11, 2008 6:48:56 PM

PS: One quick note and I'll end the filibuster: I absolutely agree that "honest services" provision is a dangerously ill-defined and blunt instrument; prosecutors love it for that reason. I think you've got bribery here, plain and simple (solicitation and/or attempt), and I'm disappointed that Fitzgerald went back to that well again (that's how he charged Gov. Ryan as well).

Posted by: Sebastian Dangerfield | Dec 11, 2008 6:52:44 PM

"Trading jobs for promises to support a political party with votes is not illegal."

This statement is probably false under the Section 1346, the "honest services fraud" statute, and especially under DOJ's interpretation. (I have no idea how the 7th Circuit interprets the statute).

Basically, the law makes any patronage (and lots of other common activities) federal felonies, subject only to prosecutorial discretion and judges' willingness to apply the overbreadth doctrine.

Posted by: JP | Dec 11, 2008 6:59:47 PM

JP observes that my view of section 1346 is "probably false ... especially under the DOJ's interpretation."

I should come clean: My characterization of what the law "is" is really my view of what the law should be -- and probably will be, if SCOTUS ever reviews a federal prosecution against a state official for violating some federal prosecutor's notion of what would be ethical disclosure of campaign contributions. I am on record as arguing that the DOJ's interpretation of section 1346 is, simply put, insane: It is an interpretation that only a prosecutor could love, driven by the DOJ's understandable desire to cast the net as wide as possible and nail politicos' hides to the wall as trophies. It tramples on the most basic norms of federalism and separation of powers, converting executive law-enforcement powers into something like a free-wheeling legislative power to dictate a campaign finance and disclosure law to the states through criminal prosecution.

But I preach this message at probably excessive length in Federalism and Corruption: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?,6 Theoretical Inquiries in Law 113 (January 2005).

Posted by: Rick Hills | Dec 12, 2008 11:25:40 AM

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