Tuesday, December 9, 2008
The arrest of Illinois Governor Blagojevich raises some interesting questions. Here are some very preliminary thoughts (for backgound see here):
- Clearly the selling of a Senate seat and the other remaining allegations in the Complaint are appalling and if the Governor is found to have done this, it is something that needs immediate correction. But it is also important to remember that this is not an Indictment coming from a grand jury and he has not been proved guilty after a trial by jury. Unlike some countries, we are not a country that convicts a person without first affording them a right to a trial by jury.
- One has to wonder whether Governor Blagojevich will be able to obtain a fair trial. Even if what the USAttorney heard on tapes was as outrageous as he claims, is it proper for a United States Attorney to make comments that characterize the alleged conduct? See Chicago Sun Times here; NYTimes here.
- Mail and wire fraud are statutes with enormous breadth. Using the "intangible right to honest services" under section 1346 extends it even further. After all, what isn't "honest services?" Now put it all together under a conspiracy statute (1349) and the question becomes - how far can prosecutorial power go? (e.g. - the hypo I use in this older article is whether a political falsehood is therefore a dishonest service - see here). One question the defense may raise is whether there was a violation of state law that can serve as the basis for the deprivation of an intangible right to honest services.
- There are no allegations of Hobbs Act violations in the complaint. Interestingly this approach would require a quid pro quo - an important requirement when political contributions are involved. Is the use of the mail/wire fraud statutes an attempt to find an open back-door? Is it being used as the "stopgap" (a term once used in the Maze case).
- Many of the people listed in the Complaint are named as "A", "B", etc. Are any of these unnamed individuals cooperating, and if not, will they soon be?
- The federal government has been obtaining information from wires on a state official as high as the governor. The press release states:
"On October 21, the Government obtained a court order authorizing the interception of conversations in both a personal office and a conference room used by Blagojevich at the offices of Friends of Blagojevich. The FBI began intercepting conversations in those rooms on the morning of October 22. A second court order was obtained last month allowing those interceptions to continue. On October 29, a court order was signed authorizing the interception of conversations on a hardline telephone used by Blagojevich at his home. That wiretap was extended for 30 days on November 26, according to the affidavit.
what does this say about the appropriate balance between the state and federal government?
- Most USA's resign when a new president comes into office. Unlike the civil service employees who work in the office, the US Attorney's serve as a presidential appointment. Will the new DOJ approve this case? Will Patrick Fitzgerald be there to prosecute this case?
- The Complaint alleges that the arrestees had "corruptly solicited and demanded the firing of Chicago Tribune editorial board members" - but some in the press seem to say the opposite (see here).
- Will all this "news" help the Chicago Tribune - Tribune Co. files for Chapter 11 bankruptcy protection. But can we count on them to report all the news (see Chicago Tribune Editor Kern's admission to withholding items here - an interesting issue in itself considering that this information does not appear to be related to national security).
- Would everyone be best here if an agreement is reached that takes this matter off the front page? In this regard perhaps the Governor of Illinois should call former Governor Spitzer for advice. (see here)
- And yes, if these allegations all turn out to be true - then maybe we need some basic ethics tests before a person can hold political office.
(esp)(blogging from Atlanta)