Rob Blagojevich and the Theft of Honest Services

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It can be argued — and perhaps is being argued by a faction of the Rod Blagojevich jury that favors acquittal — that the former governor was saved from criminal conduct by his own ineptitude. The federal tapes may show him talking the talk of high crimes, but did he walk the walk? Or was he, unlike a real criminal, all talk and no follow-through — a blowhard? If his office was for sale, where are his profits?

On Thursday, during the last meeting of the jurors before the weekend, they sent a note to Judge James Zagel saying they'd reached a verdict on just two of the 24 charges against the former governor and his brother Rob. They were divided on 11 others and hadn't even begun to discuss the remaining 11. And this was after 12 days of deliberating. Legal experts interpreted the lack of progress as reason for the defendants to get their hopes up.

I don't know if Rod Blagojevich is the type to say thanks, but if he's acquitted he should send an authentic deep dish Chicago pizza to Justice Antonin Scalia. It seems to me the jury would have a much easier time finding Blago guilty if they could find him guilty simply of denying the people of Illinois his honest services. Does anyone think the public got those?

The original indictment — returned in April of last year — accused Blago and various "co-conspirators" of exploiting the powers of the governor "to take and cause governmental actions, including: appointments to boards and commissions; the awarding of state business, grants, and investment fund allocations; the enactment of legislation and executive orders; and the appointment of a United States Senator; in exchange for financial benefits for themselves and others..." And this alleged conspiracy was, among other things, a scheme to deprive the public of its "intangible right to the honest services" of the governor.

That's a charge that takes the question of profits off the table. If the jury decided the governor woke up each morning scheming and went to bed scheming it could find him guilty of failure to serve the public honestly even if the schemes all came to nothing. In his instructions to the jury, Judge James Zagel said jurors were allowed to make "reasonable inferences" — for example., they could infer that Blago was asking for a bribe even if he didn't come right out and demand one. Even so, to infer a bribe from veiled language might strike some jurors as a stretch if no bribe was given; to infer that a governor is no boy scout would be a lot easier.

But the Supreme Court doesn't think that not being a boy scout should be a federal crime. In coming to that conclusion, it was heavily influenced by Justice Scalia, a blistering critic of the federal honest services law, which he ridiculed last year as so vague and sweeping that "it would seemingly cover a salaried employee's phoning in sick to go to a ball game."

The Court decided to review three cases that turned on the honest services theory, and in February the U.S. Attorney's Office in Chicago, which saw which way the wind was blowing, restructured the Blagojevich indictment to make the intangible right to honest services, which wasn't central to its case anyway, even more marginal. Sure enough, two months ago the Supreme Court cut the legal doctrine of honest services down to size, limiting it to use against defendants accused of bribes and kickbacks. (That didn't satisfy Scalia, who wanted the law abolished completely.)

And so here we are, with a jury that — I'm guessing — takes as dim a view of Blago as the rest of us but can't decide whether the laws that it's judging him under extend a noose or a loophole. If they could boil everything down to the answer to one simple question — "We elected Rod Blagojevich to serve us faithfully and honestly as our governor. Did he?" — their job would be a lot easier. But they can't.

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Nobody so far has profited more from the Supreme Court's evisceration of the theft of honest services theory than the former owner of the Sun-Times, Conrad Black. A lucky beneficiary of the Court's ruling, Black was released on bond last month after serving 28 months of a 6 1/2 year sentence for fraud and obstruction of justice.

One of the wonderful things about grandiose figures like Black is the grandiose writing they inspire from friends and acolytes singing their praises. Here's Jonathan Kay of Canada's National Post, a paper Black founded and contributed to from prison. Kay describes Black's prison term as a road-to-Damascus experience. The new Black, Kay writes, is "the very same man, but an entirely different intellectual. Having been on the receiving end of unchecked power, he developed empathy for its victims."

And it's real, Kay assures us. "This is not the bogus charade taken up by disgraced televangelists and politicians. A man can lie to the media, maybe even to his own lawyer. But he can't hide the truth from his valet or his editor." Kay revels in the moment. "It is ironic," he continues, "that the most intellectually vivid period of Conrad Black's life (as I perceive it) should unfold when he was behind bars. And greater things may come out of it still. Already, he has overturned a large chunk of U.S. prosecutorial overreaching with his Supreme Court victory."

Kay resists making the point that a Blagojevich acquittal would only add to Black's legacy. He may feel Black's legacy is substantial enough already.

And here's word of Black's counteroffensive, the half-dozen libel suits he's filed in Canada against his detractors. An appellate court in Ontario just ruled the suits can proceed. One of Black's targets is Richard Breedon, former chairman of the U.S. Securities and Exchange Commission who gave his name to a 2004 report on the finances of Hollinger International that accused Black, its CEO, of running a "corporate kleptocracy." Another is Jim Thompson, former chairman of Hollinger's audit committee, former governor of Illinois, and former U.S. attorney in Chicago, And in that office, he coined the legal theory of a theft of honest services in order to convict another former governor, Otto Kerner.

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