‘Tofu’ Law that Snared Blagojevich Ought to be Repealed

Published July 21, 2011

Illinois politicians were posing for holy pictures this week after the conviction Monday of former Illinois governor Rod Blagojevich on 17 federal criminal charges.

The politicians were claiming credit, largely undeserved, for helping to root out the Blagojevich corruption. They plan to pass new laws to root out even more evildoers in the future—or so they said while in the limelight of television cameras.

Three thoughts come to mind, however. First, the hypocrisy is astonishing. Second, the pols should be careful what they wish for. Third, the federal law prominent in the Blagojevich convictions—his violation of the public’s right to “honest services”—ought to be repealed.

First, the hypocrisy.

Blagojevich’s conduct was repugnant. But when you get right down to it, all he did was say out loud to his associates and, unbeknownst to him, a tape recorder, the same words countless other politicians have uttered out loud but not on tape.

The important part here is, whether said on tape or merely said out loud and recounted in court by a participant or a witness, such words are enough for federal prosecutors to get a criminal conviction, at least insofar as prosecutors interpreted the law in the Blagojevich case.

It’s not even necessary to receive the desired campaign contribution. A politician such as Blagojevich who gains not one criminal dime can still face a decade or more in jail, just for talking. That should not be the law. But prosecutors say it is, so politicians now gleeful at Blagojevich’s downfall ought to be afraid—very afraid.

Second, what happened to Blagojevich could happen to other politicians who actually trade campaign contributions for government favors, even if they say nothing out loud.

Politicians who actually engage in pay-to-play—who trade government favors for actual campaign contributions, even in silence—could be prosecuted criminally, as the Blagojevich federal prosecutors read the law.

It’s a target-rich environment.

The public record is replete with evidence of politicians rewarding their campaign donors with government largesse. Presidents Clinton and Bush both engaged in the well-known, even hallowed, tradition of appointing campaign donors to swanky ambassadorships.

President Barack Obama topped both of them, according to U.S. News and World Report, by appointing campaign donors and supporters to 44 percent of the top 185 ambassadorial posts. One of his appointees, retired Chicago banker LouisSusman, raised so much money for Obama, he was called the “Vacuum Cleaner” for his ability to suck up cash, according to Chicago magazine. He’s now the U.S. Ambassador to London. Was Susman the best candidate for the job? Who knows? It didn’t matter.

Obama also has gifted several hundred of his green energy donors and other donors with government loans and political appointments. Were they the most worthy recipients? Who knows? It didn’t matter.

Think about this presidential conduct in the context of what the Blagojevich federal prosecutors say the law is.

Blagojevich was charged with violating the “intangible right to honest services” through bribery. The honest services duty, as the Blagojevich prosecutors describe it, is violated through a “scheme,” meaning “a plan or course of action formed with the intent to accomplish some purpose.”

The “intangible right to honest services” is a fiduciary duty—the highest and nearly sacred duty of all duties known in our law. It requires the highest level of “honesty and loyalty to act in the public’s interest, not for his own enrichment.”

Note the law doesn’t require a single spoken word. It is enough if the politician silently decides to trade a government favor for a campaign contribution. This equals “intent.”

Intent is an element of the proof required in many criminal cases. Absent a confession by the defendant, prosecutors must prove intent by circumstantial evidence. Prosecutors do this all the time. It’s not unusual.

Thus, a pattern by a particular politician-defendant of awarding a wide array of government jobs, loans, or other favors to numerous campaign donors could very well establish an intentional scheme—a plan. And selecting payers for government favors by the amounts they contribute, rather than by an honest evaluation of their qualifications measured against those of non-donors, is certainly a violation of the right to honest services.

Under the “honest services” law, then, politicians who silently but tangibly reward many campaign contributors with government favors, like Obama, should be prosecuted, and if convicted, sent to prison. Politicians who talk about rewarding campaign contributors but don’t actually do so, like Blagojevich, are already being prosecuted and likely will be jailed.

The “honest services” statutes are like tofu: bland by itself, but capable of taking on any flavor prosecutors choose. These bland laws are a trap for the unwary and subject to gross abuse by ambitious prosecutors.

Any politicians celebrating the Blagojevich verdict ought instead to work to repeal the laws under which he was convicted. Otherwise, they could be next.

Maureen Martin ([email protected]), an attorney, is senior fellow for legal affairs for The Heartland Institute.