Rod Blagojevich, the former Illinois governor serving a 14-year prison term for corruption, asked a U.S. appeals court to throw out guilty verdicts rendered by two federal juries.
Leonard Goodman, a lawyer for Blagojevich, today told a three-judge panel in Chicago that “numerous errors” in evidentiary rulings and jury instructions made it impossible for his client to get a fair trial.
Prosecutors failed to prove Blagojevich had the requisite intent to criminally trade his power to appoint a U.S. Senate successor to then-President-elect Barack Obama for campaign cash or a new job, Goodman said.
“He was relying upon his understanding of politics, his reading of history,” believing he was acting in good faith and engaging in lawful political deal-making, not bribery and extortion, the attorney said of his client.
Blagojevich, a Democrat, was arrested five years ago this week and later indicted on charges relating to the Senate seat and to seeking campaign contributions by tying them to official acts. Then-U.S. Attorney Patrick Fitzgerald called it a public corruption “crime spree.”
A former congressman from Chicago, Blagojevich, 57, was elected governor in 2002 and 2006, succeeding Republican George H. Ryan, who was convicted in an unrelated corruption case in 2006 and sentenced to 6 1/2 years in prison. Ryan’s post-trial appeals were unsuccessful.
Impeached and removed from office by Illinois lawmakers, the ex-governor was tried on a 24-count indictment in 2010. Jurors deadlocked on all but the last charge, finding him guilty of lying to federal agents. He was retried on fewer charges the next year and convicted on 17 of 20 counts.
He’s serving his sentence at a low-security federal lockup in Littleton, Colorado, and wasn’t at today’s arguments. His wife, Patricia, was among the onlookers in the packed courtroom.
Hearing the appeal were U.S. Circuit Judges Frank H. Easterbrook and Michael S Kanne, each of whom were appointed to the court by former U.S. President Ronald Reagan and U.S. Circuit Judge Ilana Diamond Rovner, who was named to the bench by President George H.W. Bush. Both presidents were Republican.
While Assistant U.S. Attorney Debra Riggs Bonamici asserted the ex-governor was tried fairly and that any errors were inconsequential, Easterbrook tested her grasp of history, politics and the law by comparing Blagojevich’s actions to those of former California Governor Earl Warren, later appointed U.S. Supreme Court chief justice by President Dwight Eisenhower.
Warren, Easterbook told the government’s lawyer, was appointed to the nation’s highest court as part of a deal to deliver his home state’s delegates’ political support to Eisenhower at the 1952 Republican presidential nominating convention.
“It’s pretty well established that that happened,” the judge told Bonamici. According to the prosecutor’s argument, Eisenhower, Warren and their intermediary should have all gone to prison, Easterbrook said.
“Can that possibly be right?” he asked Bonamici.
Bonamici replied that political support at a political convention wasn’t an official act or thing of value, while Blagojevich sought compensation for official acts.
“You don’t think Eisenhower got anything of value?” the judge replied. “It would be an act of shyster-ism to say that was OK” and that what Blagojevich did wasn’t, he said.
Calling such aspirational deal-making common in politics, Rovner asked the prosecutor, “where is the line.”
The ex-governor’s objective was to obtain something for himself, Bonamici said. “He wasn’t all that particular about what that was going to be,” she said.
The Senate-seat allegations were just part of the case against Blagojevich. He was accused of tying to official acts campaign contributions sought from a racetrack operator, executives at a children’s hospital and a road-paving trade association, and the brother of Chicago Mayor Rahm Emanuel.
While jurors in the second trial failed to reach a decision on two counts and acquitted him on a third, the panel found Blagojevich guilty of wire fraud, attempted extortion, conspiracy to commit extortion, conspiracy to solicit a bribe and bribe solicitation.
Among those crimes, he was convicted for advancing a scheme to get $1.5 million in campaign money offered by supporters of then-U.S. Representative Jesse Jackson Jr. of Chicago, who wanted him to be appointed Obama’s successor in the Senate. The position went to one-time state Attorney General Roland Burris.
Jackson and the mayor were defense witnesses at the second trial. Blagojevich testified, too.
Evidence against him included testimony by people who pleaded guilty and agreed to cooperate with the government’s probe, as well as recordings from wiretaps on Blagojevich’s phones and a microphone planted at his campaign office.
U.S. District Judge James B. Zagel, who presided over both trials, sentenced Blagojevich to 14 years in prison in December 2011.
Blagojevich’s lawyers maintain the evidence doesn’t prove the governor committed crimes.
Zagel erred in not letting jurors hear most of the recordings the defense sought to play, Goodman told the appeals court today, including some he said prove Blagojevich was trying to strike a deal with Illinois House Speaker Michael Madigan to advance his legislative agenda in exchange for appointing the speaker’s daughter, state Attorney General Lisa Madigan, to the Senate seat.
“He didn’t have the tapes to back him up,” Goodman said.
Prosecutors responded before today’s hearing that the defense offered no evidence to support its claims.
“No matter the price he charges, a public official who sells his office engages in crime, not politics,” they said in a court filing. “The verdicts were supported by abundant evidence and the defendant received a fair trial.”
“This is, essentially, the third bite at an apple,” Richard Kling, a professor at the Chicago-Kent College of Law, said in an interview. “The jury came to a conclusion. The judge came to a conclusion the jury is correct. The appellate court is going to have to conclude, essentially, that they were both wrong.”
Appeals courts typically defer to trial judges’ rulings on what evidence to admit and how to punish somebody found guilty, setting a high bar for a defendant seeking reversal, Hugh Mundy, who teaches at Chicago’s John Marshall Law School, said in an interview.
To reverse any part of the related guilty verdicts, the appeals court would need to find Zagel abused his discretion to keep the recordings from the jury and that those rulings adversely affected the outcome of the trial, Mundy said.
“That’s a high bar stacked upon a high bar,” he said.
The case is U.S. v. Blagojevich, 11-3853, U.S. Court of Appeals for the Seventh Circuit (Chicago).