I have been a critic of aspects of the case against former Illinois Gov. Rod Blagojevich. Blagojevich, 58, was convicted of 18 counts of corruption and given a 14-year sentence. The most problematic charge in my view concerned Blagojevich’s wheeling and dealing for the appointment of a successor to fill the 2008 vacant U.S. Senate seat of then-President-Elect Barack Obama. Now a panel of the United States Court of Appeals for the Seventh Circuit has overturned five of the counts specifically dealing with that vacancy controversy.

The panel ruled that there was nothing illegal in Blagojevich seeking to secure a Cabinet position in President Barack Obama’s administration in exchange for appointing an Obama adviser to the president’s former U.S. Senate seat. The panel ruled:

But a problem in the way the instructions told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich’s proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet. A jury could have found that Blagojevich asked the President-­elect for a private-­sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: 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.

. . .

A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate), is a common exercise in logrolling. We asked the prosecutor at oral argument if, before this case, logrolling had been the basis of a criminal conviction in the history of the United States. Counsel was unaware of any earlier conviction for an exchange of political favors. Our own research did not turn one up. It would be more than a little surprising to Members of Congress if the judiciary found in the Hobbs Act, or the mail fraud statute, a rule making everyday politics criminal.

. . .
Put to one side for a moment the fact that a position in the Cabinet carries a salary. Suppose that Blagojevich had asked, instead, that Sen. Obama commit himself to supporting a program to build new bridges and highways in Illinois as soon as he became President. Many politicians believe that public-­works projects promote their re-election. If the prosecutor is right that a public job counts as a private bene fit, then the benefit to a politician from improved chances of election to a paying job such as Governor—or a better pro spect of a lucrative career as a lobbyist after leaving office— also would be a private benefit, and we would be back to the proposition that all logrolling is criminal. Even a politician who asks another politician for favors only because he sincerely believes that these favors assist his constituents could be condemned as a felon, because grateful constituents make their gratitude known by votes or post-­office employment.

This still leaves the remaining convictions and it is not clear if the favorable ruling will result in a significant reduction or any reduction of time for Blagojevich. His sentence was vacated but there may not be a new trial on just these counts. The lower court could simply hold a re-sentencing hearing, which could result in effectively the same sentence or a reduction.

I remain uneasy with the line dividing logrolling and criminal conduct in the case generally. Blagojevich is clearly a crude and unethical person. His taped conversation of vulgar and grasping greed clearly impacted the jury as it did many of us. It is hard to get a jury to remain neutral when listening to a governor who sounds like John Gotti: “I’ve got this thing and it’s f—— golden. And I’m just not giving it up for f—— nothing.”

However, I fail to see the clear line with the type of favors and logrolling that is commonly practiced by politicians in both the state and federal systems. The panel brought home this concern by noting how President Dwight Eisenhower named Earl Warren to the U.S. Supreme Court allegedly after Warren offered Eisenhower key political support during the 1952 campaign.

Yet, despite this analysis, the panel upheld convictions based on Blagojevich trying to sell the Senate seat for campaign cash. The panel said that the absence of a direct demand for money is neither unexpected or determinative. Indeed the panel added an unexpected reference: “Few politicians say, on or off the record, ‘I will exchange official act X for payment Y.’ Similarly persons who conspire to rob banks or distribute drugs do not propose or sign contracts in the statutory language. ‘Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion … just as it can furnish the gist of a Monty Python sketch.”

For now, Blagojevich will continue to serve the longest sentence for corruption in the state pending any change by the lower court. His estimated date of release was 2024 when he would be 67.

Here is the opinion: Blagojevich decision