Jacob Sullum

In a November 2008 telephone conversation that was recorded by the FBI, Illinois Gov. Rod Blagojevich daydreamed about what he could get for appointing Barack Obama's preferred choice to fill the president-elect's Senate seat.

"Cabinet's out of the question," he said, "but Health and Human Services ... I'd take that in a second. That'll never happen."

On another occasion, Blagojevich wondered about a position with the Red Cross, only to have his chief of staff throw cold water on the idea by noting that Obama had no authority over the organization.

Given details like these, it's not surprising that U.S. Attorney Patrick Fitzgerald failed to convict Blagojevich of illegally plotting to sell Obama's Senate seat -- the most sensational accusation against him and, aside from a single, tangential charge of lying to the FBI, the one on which the jurors came closest to agreement.

With a case based on ambiguous conversations and testimony from former cronies looking for lenience, Fitzgerald did what federal prosecutors often do: He piled on the charges, accusing Blagojevich of 24 separate but largely redundant counts in the hope that some of them would stick. In a salutary rebuke to overzealous prosecutors, the case collapsed under the weight of its confounding complexity.

The essence of Blagojevich's alleged crimes is straightforward: He was accused of using his position for personal advantage by trading official actions for campaign contributions and other things of value. Given these allegations, the bribery charges (two of the 24) make sense.

But because the feds swooped in to abort what Fitzgerald described as "a political corruption crime spree" that "would make Lincoln roll over in his grave," most of Blagojevich's talk never turned into action. His revenge fantasy of pressuring the Chicago Tribune into firing an editor who had said mean things about him, for example, did not go anywhere. Such fizzled schemes became "attempted extortion" (four counts), "conspiracy to commit extortion" (two counts) and "conspiracy to commit bribery" (two counts).

In case jurors saw bluster (or "political horse trading," as Blagojevich claims) where prosecutors saw conspiracy, Fitzgerald also charged the former governor with depriving his constituents of their "intangible right of honest services." When Blagojevich was arrested and indicted, the definition of this crime was so fuzzy that no one really knew what it meant.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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