Terrence Antonio James/Chicago Tribune via The Associated Press
Patti Blagojevich (center) stands next to her daughter, Amy, during a news conference Tuesday where she expressed disappointment in the federal appeals court ruling. She said her husband, former Gov. Rod Blagojevich, is still hopeful that “justice will prevail eventually” as he is serving a prison term for convictions related to public corruption. The court vacated five of the 18 convictions and ordered a new sentencing hearing. But the court said its ruling doesn’t necessarily mean the ex-governor’s prison term should be reduced.
Posted July 22, 2015 3:19 PM

In Blagojevich case, ‘logrolling’ arrives

By Andrew Maloney
Law Bulletin staff writer

Ask lawyers about “logrolling,” and you may hear about a new addition to the legal lexicon that could have staying power in American politics and political corruption cases.

Versions of the word surfaced nine times in Tuesday’s federal appeals court ruling that dealt a blow to former Gov. Rod Blagojevich’s hopes for an early prison release. The court left 13 of 18 of his convictions intact, setting up the case for long-shot appeals or a new sentencing hearing that could bring the same 14-year sentence he already received.

“[A] proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment,” Judge Frank H. Easterbrook wrote in the 7th U.S. Circuit Court of Appeals’s 23-page decision.

The appeals court ordered a new trial and sentence, saying the ex-governor didn’t commit a crime — via logrolling — when he tried to secure a presidential Cabinet position for himself in exchange for appointing Barack Obama ally Valerie Jarrett to the U.S. Senate after then-Sen. Barack Obama won the presidency.

The 7th Circuit vacated five convictions involving extortion, fraud and corrupt solicitation because U.S. District Judge James B. Zagel told jurors they could convict him on those charges if they believed he’d sought one appointment (the Cabinet for himself) for another (the Senate for Jarrett).

But jurors also could have found he was seeking a private benefit, such as money, which alone would suffice for a conviction.

The problem, the appeals court held, is that Zagel grouped those money-influenced acts in the private sector with political logrolling during jury instructions.

The 7th Circuit distinguished logrolling from fraud or extortion and detailed both hypothetical and historic scenarios in which people had done each other political favors using their official duties.

Patrick J. Cotter — a partner at Greensfelder, Hemker & Gale, P.C and former federal prosecutor — said if the decision has any legal resonance, it’s that juries will be told not to convict officials who’ve merely traded public acts.

“The lesson from this appellate ruling is, yes, there is such a thing as political logrolling,” Cotter said. “It’s been recognized by the 7th Circuit Court of Appeals. It’s now a legal term. It’s trading an official act for an official act.”

The court wrote that it couldn’t find any instance in which someone had been convicted for that, however.

And attorneys such as David J. Stetler, a partner at Stetler, Duffy & Rotert Ltd., said logrolling has never been against the law. Prosecutors simply overreached on Blagojevich, he said.

“It’s great to see somebody addressed it directly to correct this impression that things that are ordinary conduct are illegal,” said Stetler, a former federal prosecutor who now handles white-collar criminal defense. “Everyday things — you vote for my bill, I’ll vote for yours — that’s the way government works. So I don’t view it as plowing new ground.”

In its description of logrolling, the court crafted an everyday scenario in its decision that aligned with what Blagojevich arguably tried to do with the Senate vacancy.

“Representative A agrees with Representative B to vote for milk price supports, if B agrees to vote for tighter controls on air pollution. A President appoints C as an ambassador, which Senator D asked the President to do, in exchange for D’s promise to vote to confirm E as a member of the National Labor Relations Board,” Easterbrook wrote.

“Governance would hardly be possible without these accommodations, which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”

Real-life examples abound of officials exchanging political favors “in the usual course of business,” Easterbrook wrote.

“The current Secretary of State was appointed to that position from a seat in the Senate, and it wouldn’t surprise us if this happened at least in part because he had performed a political service for the President,” Easterbrook wrote, referring to Obama’s selection of John Kerry as secretary of state.

The court added that there is evidence Earl Warren became chief justice of the U.S. Supreme Court by delivering the California delegation to Dwight Eisenhower in 1952.

Thus, if trading a job for a political favor 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.

Federal prosecutors haven’t commented on whether they’ll retry the case or head directly to a new sentencing hearing. Two of Blagojevich's lawyers could not be reached today.

There are four directions the case could go from here — two types of appeals and two steps that would lead back to a trial court and a resentencing.

U.S. Attorney Zachary T. Fardon could opt to try to convict Blagojevich again on the five vacated counts.

But that move is unlikely, some lawyers said, because of the media frenzy surrounding the case and the fact that three of the prosecutors on the case don’t work in the office anymore.

In addition, the appeals panel wrote that Blagojevich’s 14-year sentence was not “unlawfully high,” and any error went in his favor because the sentencing guidelines called for 30 years to life in prison.

Blagojevich’s lawyers could also ask for a rehearing before a full panel of 7th Circuit judges, appeal to the U.S. Supreme Court or do both.

For now, though, “logrolling” may be the main takeaway from the appeals court’s action.

“I think that that’s probably a very important part of the decision that hasn’t sunk in yet,” said Fred L. Foreman, a former Lake County judge who, as a federal prosecutor, handled prosecuted Operations Greylord and Gambat which yielded convictions for judges and lawyers on charges such as case-fixing.

“Over the years, the Department of Justice has been accused of criminalizing political conduct, where you have incidents of public corruption. And I think this will give some guidance as what’s considered to be over the line or not.”

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