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Blagojevich trial offers test of teetering ‘honest services’ law

Photo: AP Photo/Charles Rex Arbogast

As Rod Blagojevich’s corruption trial begins in a Chicago federal courtroom this week, the proceedings will likely focus as much on the former governor’s madcap media appearances and connections to boldfaced names as on the galling allegations themselves.

Blagojevich was arrested in December 2008 on charges that he attempted to sell Barack Obama’s Senate seat to the highest bidder, by haggling with prospective appointees over how much they could pay into his war chest. He is also accused of trading official actions for campaign contributions and, in one case, offers of employment from the president of a children’s hospital. If convicted, he faces as much as 20 years in prison and a $1 million fine.

To distract from those allegations, and perhaps endear himself to potential jurors, Blagojevich has engaged in a whirlwind media tour. He has hosted his own radio show, published an autobiography, played himself in a musical, appeared on “The Celebrity Apprentice” (where he was fired in the fourth week), watched his wife eat a dead tarantula on another reality show and performed a rendition of Elvis’ “Treat Me Nice” at a private party. With Fabio.

And in an audacious bid to drag the president into his mess, Blagojevich’s lawyers have subpoenaed White House Chief of Staff Rahm Emanuel and presidential adviser Valerie Jarrett. The move is less about proving Blagojevich’s innocence than about muddying the waters: Blagojevich’s team hopes to paint him as a well-meaning if misguided public servant, ensnared in a corrupt Chicago political machine that reaches as far as the West Wing.

But the courtroom drama may also serve to distract from what many observers say should be the real focus of Blagojevich’s trial: the need for more effective safeguards to prevent others from getting away with what Blagojevich attempted, albeit on a smaller scale. His alleged crimes, many say, are dazzling examples of otherwise routine political transactions that take place in the gilded corridors of Springfield and other state capitols every day.

When the Blagojevich scandal first unfolded in 2008, Illinois officials promised to clean up that ethical morass.

But since then, there has been little if any progress.

“There’s been a lot of emphasis [on reform] in the last couple of years, but it hasn’t been matched by action,” said Andy Shaw, executive director of the Illinois Better Government Association, a watchdog group that investigates ethical lapses. “There’s reform in the air, but it tends to dissipate quickly.”

Shaw’s group has spotlighted the pervasive commingling of public and private business in Illinois politics, a problem that has plagued state governments across the country. Earlier this year, the former leader of New York’s state senate was sentenced to two years in prison for essentially running a private consulting business out of his government office. A jury found him guilty of using his official clout to steer contracts to private clients, who then paid him a considerable fee.

In some ways, the case of Joseph Bruno is similar to that of Blagojevich, who allegedly tried to sell Barack Obama’s former Senate seat to the highest bidder. And in both cases, prosecutors have wielded a little-known but widely used legal tool known as “honest services fraud.” The 1988 law is a simple, 28-word addition to the federal criminal code that makes it illegal to “deprive another of the intangible right of honest services.”

The law has been challenged in several court cases for being vague and overly broad, and the Supreme Court is set to rule within the next several weeks on its constitutionality. Because 12 of the 24 charges against Blagojevich accuse him, essentially, of conducting this type of fraud, his lawyers have attempted to delay the trial until after the Supreme Court makes a decision. A judge refused.

But the Supreme Court seems likely at least to narrow the circumstances under which the law can be used, if not scrap it entirely. Justice Antonin Scalia, often the standard-bearer for the court’s conservative wing, wrote a scathing critique of the honest services statute in a 2009 dissent, arguing that, under the law, “anyone who does something wrong commits a crime.”

What’s so striking about the case is just how crucial the honest services statute has become to preventing or prosecuting otherwise appalling ethical lapses in state capitols around the country. In the case of Bruno, for example, his crime may have seemed inherently wrong — using a public position for private gain — but there were no criminal laws on the books in New York to prevent such abuses, or even to require public officials to disclose outside business interests. Prosecutors based all of their charges on the “honest services” statute. If the law is overturned, Bruno may well go free.

Blagojevich, on the other hand, must still answer to charges of extortion and racketeering. But to convict a politician of those crimes, prosecutors must prove that threats were explicitly made, or that money changed hands. In Blagojevich’s case, their task may be made easier by federal wiretaps that capture a profane and impatient governor haggling over Senate seats, political kickbacks and promises of employment for his wife.

But in most cases, like Bruno’s, money never changes hands. Or if it does, it’s not easily traced. Threats are veiled and promises implied. The brand of horse-trading common in state capitols and city councils, with some exceptions, is routine, and rarely prohibited by the law. The only thing that makes them indictable offenses is that they are, essentially, “dishonest,” that they trade private gain for public power, and abuse the public trust.

“To me, the biggest question if the statute goes by the wayside is, ‘What are the cases that the government can’t bring anymore?’ And I think there are a lot of them,” said Patrick Collins, a former federal prosecutor who led the investigation of a previous Illinois governor, George Ryan. Ryan is currently serving six years in prison for a scheme involving the sale of government licenses and contracts.

In Ryan’s case, prosecutors based their charges almost exclusively on the honest services law.

“If the statute was gutted, it would have been, I don’t want to say a fatal blow, but a very significant blow to the Ryan case,” Collins said. “Whether or not it goes, there’s other things that can be done at the state legislative level in states around the country to bolster and support the tools needed to keep politicians on the straight and narrow.”

Collins suggested, among other things, allowing state prosecutors to apply for wiretaps in investigations of public corruption, which would make it easier to prove specific charges like bribery or extortion. Currently, state prosecutors in Illinois and elsewhere can use wiretaps on drug kingpins, for example, but not on public officials. “One doesn’t have to be to cynical to identify why the politicians may have carved themselves out of the statute,” Collins said.

He added that wiretaps were just one of many ways, including stricter disclosure requirements and campaign finance laws, to keep politicians honest: “There is a patchwork of items that should be considered to fill the void, if you will, if the honest services law is struck down.”

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