President Donald Trump’s decision to pardon former Illinois Gov. Rod Blagojevich helps correct an injustice and is a proper use of the president’s pardon power.
Blagojevich was a rare Illinois politician who never took a bribe, gift or loan from any supporter, and he never took a penny from his campaign fund. His main achievements as governor — the All Kids health insurance program and free rides to senior citizens on public transportation — benefited ordinary Illinoisans rather than special interests.
The criminal case against Blagojevich was centered on a comment he made during a private telephone call in November 2008, following the election of Barack Obama to the presidency. Referring to his power to appoint Obama’s replacement in the Senate, Blagojevich remarked: “I’ve got this thing and it’s (expletive) golden. … I’m not just giving it up for (expletive) nothing.” (During this period of time in 2008, federal prosecutors were recording the governor’s personal and business calls and were listening to every conversation in his campaign office.)
After the call was released, Blagojevich was accused of trying to “sell” Obama’s Senate seat.
However, as revealed on hundreds of hours of these recorded calls — most of which were excluded from the trial jury and remain under seal to this day — Blagojevich never attempted to sell the Senate seat. Rather, he attempted to make a political deal that, as the appellate court later conceded, was perfectly lawful and commonplace.
The potential deal for the Senate seat that occupied most of the governor’s attention in late 2008 was a deal with Michael Madigan, then the powerful speaker of the Illinois House, who was blocking Blagojevich’s legislative priorities during his second term as governor. Blagojevich proposed appointing Madigan’s daughter, Lisa Madigan, to the Senate in exchange for the speaker’s promise to enact an infrastructure bill and health care expansion. However, because this potential deal was so clearly in the interests of the people of Illinois and thus contrary to the government’s narrative that Blagojevich was trying to sell the Senate seat, the prosecutors fought hard to exclude this evidence, and the court sided with the government.
There are in fact dozens of calls relating to the Madigan deal. But the jury never heard them because prosecutors persuaded the judge to keep them out of evidence.
Blagojevich is one of the only people in U.S. history to be prosecuted for attempting to make a political deal, or what the appellate court called “everyday politics.” The charges relating to this attempted deal were overturned on appeal and dismissed.
All that remained of the case against Blagojevich at the time of Trump’s pardon were charges relating to campaign fundraising. Politicians are rarely prosecuted for raising campaign funds, which is a requirement of their job, unless they are independently wealthy and can fund their campaigns themselves. Recognizing this reality, the U.S. Supreme Court set a high bar for federal prosecutors in the 1991 seminal case on campaign fundraising, McCormick v. United States. Under McCormick, solicitation of a campaign contribution becomes a federal crime “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”
Blagojevich understood the McCormick case and never once crossed its line. Recognizing this fact, as confirmed by the tapes, the prosecutors drafted instructions that directed the jury to convict based on a mere “belief” that a campaign contribution “would be given to him in return for (some) action.” No other elected official has been held to this standard with respect to campaign fundraising. Few, if any, politicians could convince a jury that there was “no connection” between campaign contributions and official acts, as Blagojevich was required to do.
On appeal of Blagojevich’s conviction and 14-year sentence, the appellate court refused to examine the instructions to the jury. Instead, the court pronounced the instructions “unexceptionable,” falsely claiming that they “track McCormick.” In fact, the instructions used to convict Blagojevich are nearly identical to the jury instructions that the Supreme Court struck down in McCormick.
A day will come when all of the evidence collected in the Blagojevich case is released to the public and the full extent of the government’s misconduct will be exposed. Until that day, Trump’s full and an unconditional pardon brings a measure of justice to the people of Illinois and the Blagojevich family.
Leonard C. Goodman is a Chicago criminal defense lawyer who represented Rod Blagojevich.
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