Rod Blagojevich, Bob McDonnell, and the Nature of Corruption
What’s the line between “politics as usual” and political corruption? Recent cases involving two former state governors provide some interesting insights. Former Virginia governor Bob McDonnell is currently preparing to ask the U.S. Supreme Court to review and possibly overturn his corruption convictions. Meanwhile another former governor, Rod Blagojevich of Illinois, recently succeeded in having some of his corruption convictions thrown out by the U.S. Court of Appeals for the Seventh Circuit. Blagojevich was indicted in 2009 on multiple counts including racketeering, conspiracy, honest services fraud, and extortion. As a result of the federal investigation, he was impeached by the Illinois legislature and removed from office. He ultimately was convicted of eighteen felony charges and in March of 2012 began serving a 14-year prison sentence. Blagojevich’s trial centered on a number of different “pay to play” schemes in which the governor sought to extract “campaign contributions” or other things of value from those seeking action from his office. (The Seventh Circuit put the term “campaign contributions” in quotes because Blagojevich was in his second term and had already decided not to run for re-election; thus the jury was free to accept the government’s theory that the money was really for his personal use.) Much of the evidence came from Blagojevich’s own mouth: the FBI had been wiretapping his phones for months. In one instance, when hospital lobbyists sought an increase in the reimbursement rates the state paid for Medicaid patients, Blagojevich let the hospital know he would agree to the new rates in exchange for a $50,000 “campaign contribution.” In another incident, after the state legislature approved a program to tax casinos for the benefit of racetracks, Blagojevich sent word to a man with interests in two racetracks that the governor would not sign the bill until the man made a $100,000 “contribution.” Perhaps the most notorious of Blagojevich’s misdeeds, however, was his attempt to cash in on his power to appoint President Obama’s successor in the U.S. Senate. When then-Illinois Senator Obama was elected President, it left a Senate vacancy that Illinois law gave Blagojevich the power to fill. He clearly relished the potential value of this power; on one memorable bit of tape, the FBI caught him describing his ability to fill the Senate seat by saying “I’ve got this thing, and it’s f**king golden . . . I’m just not giving it up for f**king nothing.” The evidence at trial established that Blagojevich first sought a favor from President-elect Obama in exchange for appointing Valerie Jarrett, whom Blagojevich believed was Obama’s favored candidate for his former seat. Working through intermediaries, Blagojevich asked to be appointed as an ambassador or to a seat in the President’s cabinet, or for the President-elect to arrange a job for Blagojevich at a private sector foundation or other organization that would receive funds he could control from the federal government or from the President’s supporters. Obama was not willing to make a deal and, as his quote above made clear, Blagojevich was not about to make the appointment without some kind of compensation. He moved on and offered to appoint U.S. Rep. Jesse Jackson Jr. to the seat in exchange for a $1.5 million “campaign contribution.” Fortunately, he was arrested before this attempt went very far. The government charged these attempts to get something in exchange for the Senate appointment under various legal theories including attempted extortion and wire fraud. The jury found Blagojevich guilty of those and other charges. On appeal, the Seventh Circuit affirmed the majority of Blagojevich’s convictions, finding the evidence “overwhelming,” but overturned those related to the attempts to sell the Senate seat. The Court of Appeals noted that the trial court’s instructions would have allowed the jury to convict Blagojevich for agreeing to make the appointment in exchange for a private sector job or funds that he could control, and that would be perfectly valid. Either would establish classic quid-pro-quo bribery, where the public official receives something of value to which he is not entitled in exchange for exercising his official powers. But the instructions also would have allowed the jury to convict Blagojevich based solely on his offer to trade the Senate appointment for a position for himself in the Obama administration. And that’s where the convictions ran into trouble. The Court of Appeals concluded that offering to trade one appointment for another was not an act that could support a corruption conviction: “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” The Court noted that the trading of political favors, or what it called “logrolling,” is a common occurrence. Congressman A might agree to vote for a bill favored by Congresswoman B, and in exchange B agrees to support a program favored by A. The President appoints C as an ambassador as a favor to Senator D, who agrees in return to vote to confirm another of the President’s appointments. This type of horse trading is considered politics as usual; part of the give and take and compromise of politics without which little could ever be accomplished. It may appear unseemly at times, but it is not generally considered corrupt. It’s true that the public job would have benefited Blagojevich, but that’s also true of many other political acts that could be exchanged for making the appointment. For example, if the federal government had agreed to support a major infrastructure project in Illinois, that could inure to Blagojevich’s benefit by bolstering his political standing and reputation. The key is not whether a politician benefits in some way from a deal, but whether the deal involves corrupt intent – and the trading of one political favor or public act for another generally does not. If the jury had found that Blagojevich agreed to make the appointment in exchange for money or a private sector job, there would be no problem with the verdict. But because the instructions also allowed the jury to convict him even if he was simply engaged in political horse-trading, those convictions could not stand. (As an aside, Blagojevich appears to have won the battle but lost the war – although he did get five of eighteen counts of conviction tossed out, the sentences on all charges ran concurrently so his overall prison sentence is unlikely to be affected.) Now let’s turn to former Virginia governor Bob McDonnell. McDonnell, like Blagojevich, rests part of his appeal on the claim that he was improperly convicted for actions that were not corrupt but were simply politics as usual.
McDonnell and his wife Maureen were found guilty in September 2014 on multiple counts of corruption. Their convictions were based on their relationship with businessman Jonnie Williams. The government charged that Williams gave the McDonnells valuable gifts including a Rolex watch, thousands of dollars in designer clothing, payment of the catering bill for their daughter’s wedding, and $120,000 in no-paperwork, interest-free “loans.” In exchange, the government charged, the McDonnells agreed to use the powers of the Governor’s office to promote Anatabloc, a dietary supplement made by Williams’ company. Throughout the case, McDonnell has never denied that he and the first lady received the gifts from Williams. Instead, his defense has been a variation of the “politics as usual” argument. He claims that Virginia ethics laws were very lax and that accepting such gifts was simply the “Virginia way.” He also has argued that anything he did for Williams in exchange, such as arranging meetings with or introductions to other state employees, amounted to routine political courtesies for a supporter and could not form the basis of a corruption conviction. McDonnell has an impressive amount of support from other lawmakers, both in Virginia and nationwide. Many politicians, including several former Virginia Attorneys General, filed briefs arguing that McDonnell’s convictions pose a dire threat to our political system and to politicians everywhere. These supporters claim that if McDonnell’s convictions are allowed to stand, no politician can attend a routine fundraiser or Rotary Club breakfast and later take action supported by those in attendance without fearing that the FBI will come knocking. I’ve found it surprising – and a little disheartening – to see so many politicians and former Attorneys General essentially arguing that the Republic will fall if politicians aren’t allowed to behave the way McDonnell did. (By the way, it’s worth noting that it has been more than a year since McDonnell was convicted and there is no sign that government in Virginia or elsewhere has ground to a halt.) Despite the political weeping and gnashing of teeth, at bottom the McDonnell case really is a relatively straightforward case of quid-pro-quo corruption. The intersection of money and politics is always a potentially treacherous one. Politicians do have a legitimate need to raise money for their campaigns. They hold fundraisers and accept support from interested individuals who would like to see them act in a certain way, and they regularly take actions that are favored by those who support them. That is indeed politics as usual, and politicians behaving that way have nothing to fear from the McDonnell case. The sleight-of-hand in McDonnell’s argument is his attempted lumping of Williams in with ordinary donors and supporters. Attending a fundraiser, hearing from constituents, and later taking steps favored by those constituents and donors is indeed what politicians do. Having someone secretly pay for your daughter’s wedding caterer, give you a Rolex and expensive vacations, or give you secret, no-paperwork “loans” – and agreeing to do political favors in exchange -- most decidedly is not. Legal campaign contributions are within established limits and are reported so the public may see where a politician’s support is coming from. Such contributions generally are not considered corrupt, even when the politician acts in a way favored by those donors. As long as we have privately financed campaigns, these types of relationships between politicians and their supporters are inevitable. Sunlight – in the form of disclosure of the contributions – is supposed to act as the disinfectant to prevent secret and undue influence. (Of course, the post-Citizens United presence of super-PACs and other organizations that can spend unlimited amounts on behalf of a candidate raises a whole host of other issues, but that’s beyond my scope here.) It’s possible for campaign contributions alone to form the basis of a bribery charge, but it’s very rare. There must be an explicit deal in which the politician agrees to take a specific action in direct exchange for the contribution. Absent such an agreement, lawful campaign contributions have almost a presumption of legitimacy – despite the reality that we all believe politicians ultimately may be influenced to some degree by those contributions. But Jonnie Williams was not just another donor or supporter. He was not holding fundraisers for McDonnell or “bundling” publicly reported campaign contributions. He provided the McDonnells with $170,000 in secret, off-the-books gifts. Likening these secret payoffs to routine political support is disingenuous at best. What’s more, the jury instructions in the McDonnell case required the jury to find quid pro quo corruption. Merely accepting the gifts was not enough; the jury was told they had to find an agreement by McDonnell that his official actions would be influenced in exchange for the gifts. Despite his protestations, McDonnell was not convicted for extending routine political courtesies to a "supporter." He was found guilty of agreeing to sell the power and influence of his office in exchange for undisclosed gifts that effectively doubled his annual salary as governor. That is not politics as usual. Politicians are free to trade political favors but they can’t agree to sell the exercise of their powers to the highest bidder. They are free to take steps to benefit their supporters, but not to enter into secret deals to act in direct exchange for valuable gifts. The line between politics as usual and political corruption may not always be crystal clear, but there's little doubt that the actions of these former governors fell on the wrong side of that line. Click here to join the Sidebars mailing list and receive e-mail notifications of future posts.