Blago’s Tactics
Ezra Klein quotes Dan Conley on what Blago’s trying to accomplish:
The appointment of Burris is a pure impeachment-defense tactic from Blagojevich. First, he’s making a public case that no crime was actually committed. If Burris was appointed without any quid pro quo (highly likely, since Burris has no great wealth or influence), then Blagojevich can argue that all the talk about other possible appointments were just that — talk. And talk is not a crime. Is anyone going to buy that? Well, even if only ten percent of Illinois voters buy it, Blagojevich will have doubled his support, so why not? There’s a certain freedom in nearly complete unpopularity.
But second, and more important for Blagojevich’s survival plans, he’s chosen to play the race card. To anyone who thought that the election of Barack Obama would diminish the power of racial politics, today’s press conference was depressing — especially the appalling spectacle of Rep. Bobby Rush using the word “lynch” in reference to criticism of Burris, then Blagojevich repeating the phrase while wagging a finger at the press corp on the way out of the room. For a Governor looking to rally support in the House and Senate to avoid impeachment or convinction, it’s a smart move. A combination of African American and Latino Senators could be sufficient to save Blagojevich from a conviction in the Illinois Senate. It probably won’t work, but Blagojevich has few options left.
I really wouldn’t underplay what’s in the first paragraph. If you read Patrick Fitzgerald’s official complaint against Blagojevic, I think you’ll reach the conclusion that the criminal case against him on the Senate seat issue isn’t very strong. There’s other, better stuff in the indictment, but that particular charge seems to have been brought somewhat prematurely. I’d say that was a reasonable use of a prosecutor’s discretion — actually sitting on the wiretap until the seat had already been auctioned off would not have served the public interest. But it means Fitzgerald is moving forward with a relatively weak charge.
Under the circumstances, for Blago to have granted everyone’s requests for him to leave the seat unfilled would have been something of an admission of guilt. Conversely, making an appointment and making it a clean one — a qualified guy who’s not discussed on any of the wiretaps and who isn’t offering any bribes — has a lot of exculpatory power in terms of mounting a criminal defense.
The whole thing, however, serves as a reminder that this problem is a problem in the first instance for the Illinois legislature. The criminal justice system, quite rightly, moves deliberately and requires certain standards of evidence. But a political process such as an impeachment can move at a different pace and can properly employ different standards. And faced with this sort of public corruption the imperative isn’t on getting the guy to do jail time, it’s on getting the guy out of office so the people of Illinois can have a real governor. It’s a bit bizarre that it’s taking them so long — they need to hurry up and remove the man from office.
35 Responses to “Blago’s Tactics”
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December 31st, 2008 at 2:18 pm
Conspiring to commit a crime is itself a crime. You don’t have to actually commit the criem to be guilty of the conspiracy. The taped conversations seem to be open-and-shut proof of a conspiracy.
December 31st, 2008 at 2:23 pm
I’m not an attorney, and Patrick Fitzgerald is a pretty smart guy, so I’m hoping that he jumped when he did knowing that the rest of the case — not including the senate seat — was strong enough to convict. I know that’s the part of the indictment getting all of the attention, but there was a lot more there.
December 31st, 2008 at 2:29 pm
I’ve now come to the conclusion that this guy isn’t going anywhere.
December 31st, 2008 at 2:31 pm
I’d say that was a reasonable use of a prosecutor’s discretion — actually sitting on the wiretap until the seat had already been auctioned off would not have served the public interest.
I don’t think this was “discretion.” What I’ve read is that Fitz had to move before the Tribune ran the story — they forced his hand.
The feds were miffed not to be able to actually catch on tape the sale of the seat.
December 31st, 2008 at 2:35 pm
The case against Blago on the Senate seat sale is quite strong.
Leave the law blogging to the lawyers.
December 31st, 2008 at 2:40 pm
1) Well, what makes this complicated –and hilarious — is that most of the politicans involved are crooked to some degree.
2) The Republican Party has a hardon at the idea that Barack Obama’s replacement could be a Republican — so they are pushing like crazy for Illnois to have a special election instead of an appointment.
Blagojevich’s signature would be needed for the law allowing that — and the price of that signature would be that the Republicans prevent him from being impeached.
3) Which puts the Democrats in several awkward positions. They don’t Blagojevich appointing Burris — so they are trying to block that.
Which hurts them with the African American community which sees a racist doublestandard. Especially in a lily white Democratic caucus whose credibility on moral issues is of ..er.. limited reach.
4) But the Democrats are also terrified of losing the special election — so they don’t want to let the people of Illnois decide either. Which kinda hurts them on that “moral authority position.
They want Blago gone and their chosen replacement for Obama’s seat rubber stamped by the Vice Governor. But the Republicans in the Illnois Legislature are starting to see all kinds of attractive possibilities to keeping Blagojevich around to pursue his nut-cutting vendetta with the Democrats.
5) A criminal conviction of Blago would settle things — but his defense lawyers can push that off for years.
Who knows — maybe Obama will pardon Blagojevich on January 23. heh heh
December 31st, 2008 at 2:44 pm
MattY could have known about and found this too, but he was busy with something else or something.
I’m also sure that IL will have a “real” governor one of these days. Everyone just needs to close their eyes and wish real hard.
December 31st, 2008 at 2:44 pm
Talk is not a crime? Tell that to the Fort Dix Five.
December 31st, 2008 at 2:46 pm
This sudden moral imperative that senators must always be replaced through special elections sort of reminds me of the sudden moral imperative that winning the Democratic nomination is illegitimate unless every state has a meaningful primary election as part of the process. Maybe it’s a good idea, but it’s not the system we have or have ever had, and somehow there weren’t complaints before.
December 31st, 2008 at 2:47 pm
The case against Blago on the Senate seat sale is quite strong.
Fitz has asked for a 90-day extension on filing the indictment. Lots of work to do, it sounds like.
December 31st, 2008 at 2:56 pm
Wouldn’t it have been a better strategic move for Blago to name Patrick Fitzgerald as the new Senator of Illinois?
Then Blago could have counter-charged that Fitzgerald was really trying to blackmail him for the seat. Bet he didn’t think about that one!
December 31st, 2008 at 3:08 pm
Conversely, making an appointment and making it a clean one — a qualified guy who’s not discussed on any of the wiretaps and who isn’t offering any bribes — has a lot of exculpatory power in terms of mounting a criminal defense.
How, exactly, does that appointment exculpate anything in the wiretaps? Not seeing it.
Agree that they need to just go ahead and impeach the guy. I wonder what the holdup is on that.
December 31st, 2008 at 3:12 pm
The Artist Formerly Known as Lonewacko at No. 7 above criticizes MY for not noticing a Wall Street Journal article, but himself fails to notice that the linked article contains a correction refuting its whole premise:
The precise timing of Tuesday’s dramatic, pre-dawn arrest was not dictated by Fitzgerald, nor was it dictated by the pace of Blagojevich’s alleged “crime spree.” It was dictated by the Chicago Tribune, according to people close to the investigation and a careful reading of the FBI’s affidavit in the case.
[Correction: The timing of the Dec. 9 arrest of Rod Blagojevich wasn’t affected by a Dec. 5 Chicago Tribune article disclosing that the Illinois governor was being secretly recorded, an FBI spokesman said Tuesday.]
December 31st, 2008 at 3:13 pm
How, exactly, does that appointment exculpate anything in the wiretaps? Not seeing it.
It’s not even remotely exculpatory, and it’s getting kind of annoying seeing that so many smart, educated bloggers like Matt Y. and Ezra Klein exhibit such ignorance about the criminal law. They really do seem to think that if a criminal doesn’t ultimately achieve his goal, this somehow entails that no crime has been committed. You don’t have to be a lawyer to know that if you hire someone to kill your wife, you’re going to jail even if you get caught before she actually dies.
December 31st, 2008 at 3:19 pm
“The taped conversations seem to be open-and-shut proof of a conspiracy.”
Where’s the act in furtherance of the crime? Conspiracy is the most abused charge in the prosecutor’s arsenal, and anyone who believes the goverment needs to prove beyond a reasonable doubt that a crime has been committed, and/or that thought crimes are anti-democratic, should not be cheering their overuse (even when the target of the prosecution is certifiably a dick).
I’m going to kill Matt Yglesias because he seems fond of Megan McArdle.
Am I now guilty of conspiring to kill Matt Yglesias?
December 31st, 2008 at 3:26 pm
The conspiracy angle isn’t really that important; the best way to look at the nature of Blago’s criminality is through the lens of “attempt.” Trying to fence stolen goods is still a crime even if you don’t close the sale. Soliciting prostitution is still illegal even if the hooker turns out to be an undercover cop. Setting up a sex date with a 14-year-old is illegal even if it ends up being “To Catch a Predator.”
Blago was pretty clearly trying to sell a Senate seat. That he failed in his attempts to do so–and failed because law enforcement interrupted his efforts–may, in the end, mean a lighter sentence but it won’t get him off the hook, unless the statutes in this area are really screwy.
December 31st, 2008 at 3:34 pm
What’s most interesting isn’t the legal analysis that Matt offers, but the fact that he’s repeating the new conventional liberal wisdom: (1) The criminal case against Blago isn’t strong, but (2) Blago should be impeached and removed from office, and (3) the impeachment should happen quickly and the fact that it might disrupt the prosecution is too bad.
For those wondering why this angle is the one being pushed, note that this is a remarkably good angle for Obama and his friends. Fitzgerald is unprofessional, maybe even partisan. Blago is a crook anyway, but proving that he is means we can’t prosecute him, and thus that he can’t be flipped. It’s all very convenient.
December 31st, 2008 at 4:04 pm
Yes, very convenient in the fantasy world in which Obama is involved with Blagojevich (Illinois Democrats are a hive mind, dontchaknow). Presumably Blagojevich’s cursing of Obama on tape is part of the plot as well. But I’m not quite sure how tarnishing Fitzgerald, who has exonerated Obama, is supposed to help.
December 31st, 2008 at 4:47 pm
KC, Obama’s associates are Blago’s. Obama’s fundraisers are Blago’s. Rahm inherited Blago’s Congressional seat, and asked that Blago find a warm body to fill it until Rahm could have it back.
Why tarnish Fitzgerald? Because who knows what he’s going to do next. Rezko hasn’t been sentenced yet. Blago has been indicted. Daley is still a target. And Fitzgerald has ambition.
That’s the why. There may be other reasons as well. But don’t take my word for it–just note that the process has begun. There is a push to impeach Blago, with a full acknowledgement that it would disrupt a prosecution. And there is a push to say that the prosecution’s case is weak. A coordinated message campaign is underway.
December 31st, 2008 at 4:53 pm
I’m going to kill Matt Yglesias because he seems fond of Megan McArdle.
Am I now guilty of conspiring to kill Matt Yglesias?
No, but that’s just because you used McArdle as an example.
December 31st, 2008 at 5:09 pm
Fitzie rushed out the indictment on Blago because the wiretaps were picking up Rahm and Jesse Jr and their buds and if the taps continued Fitzie would have faced the prospect of charging half the Dem establishment in Illinois.
Not to mention that had he waited until after the appointment then he would have been soundly damned by all sides, not least the Obabots who would insist that it was delayed to ruin Obama. All smothered in croc tears and hand ringing over his allowing the “crime” to occur.
But it is absurd to argue that Blago was engaged in anything that every major politician, including Saint Obama, has not also engaged in. It does no good for us, it is in fact a great evil, to pretend that Politics is not spelled Quid Pro Quo.
Of course in Obama it will be called “pragmatic” or some such nonsense; the Left has already demonstrated that its investment in Obama will lead them to cheerfully swallow any lie, any betrayal. Even Rich has admitted that He Who Will Heal The Planet has already demonstrated an unseemly eagerness to play Bush III.
And he’s not even sworn in as yet.
December 31st, 2008 at 5:37 pm
Thank you for trying to fact-check me, however, the WSJ correction says:
The FBI spokesman did not dispute that some members of U.S. Attorney Patrick Fitzgerald’s team believed the Tribune article prompted Blagojevich to cancel a meeting allegedly called to discuss trading the Senate seat for campaign contributions.
January 1st, 2009 at 12:34 pm
I don’t want to defend Blago, obviously, but at the same time I’m really not comfortable with the idea of impeaching officials for criminal offenses absent an actual criminal conviction. It seems entirely too arbitrary and an invitation to abuse to me. Athough in the event Blago is convicted, he quite obviously should be booted quickly. And while the functioning government argument is a little compelling, I just sort of wonder how far that standard really goes. I mean, no one disputes that Bill Clinton lied in his Jones deposition, or that he and Congress couldn’t get along in the late 1990’s. So should Clinton and Gore have been removed in favor of Newt Gingrich so that the Congress and the White House could work in harmony? Probably not, and I obviously don’t think that’s what you’re arguing, but that seems like a fairly logical extension of allowing those standards to be used for removing duly elected public officials.
January 1st, 2009 at 2:02 pm
I’m really not comfortable with the idea of impeaching officials for criminal offenses absent an actual criminal conviction.
I don’t think this would be a case of that so much as a case of impeaching him for clearly unethical, inappropriate behavior, documented beyond a reasonable doubt. The question whether he’ll get convicted for a crime in the justice system is separate.
January 1st, 2009 at 4:27 pm
The real legal angle
Appointing someone who didn’t offer him a bribe for the appointment — after his intention to offer the seat for the highest bribe has been broadcast — doesn’t exonerate Blago from intent to take a bribe. That angle doesn’t work for him.
What will work for him is what will happen after his appointment hits the US Senate. Because the Senate has been put on notice by the criminal complaint against Blago for running an auction to secure his appointment to this seat, it will have to assure itself, in its capactiy as the judge of elections to its membership, that the Burris appointment is not a manifestation of the Blago bribery scheme. But any investigation or hearings it conducts to assure itself of the lack of connection between the appointment and the bribery scheme will tend to compromise the criminal prosecution of Blago. This is how many of the Iran-Contra criminals got off.
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