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Blago Ruling Indicts Media

The 7th Circuit Court of Appeals could not have been any clearer on Tuesday when it handed down its ruling on Rod Blagojevich's appeal of his 18-count indictment: The evidence against the former governor was overwhelming, his lawyers' arguments were frivolous, and, while there were some technical issues to clarify, a reduction in his sentence was unlikely.

And yet, several journalists and news organizations got it wrong, trumpeting headlines about overturned counts, a vacated sentence, a possible retrial and a victorious day for Blago. One put a call into Blagojevich's brother, who declared that justice had been served; others "analyzed" Blago's "winning" case.

I took to Twitter immediately to correct the record, but at one point I was so exasperated I tweeted this:

Let's take a look at the ruling itself, which you can read for yourself here, and the corresponding coverage.

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After recounting the case against the Blagojevich, the court says:

Blagojevich now asks us to hold that the evidence is insufficient to convict him on any count. The argument is frivolous. The evidence, much of it from Blagojevich's own mouth, is overwhelming.

Given that the court states that right up front, it's hard to see how reporters drew the conclusion that this was going to be a good day for Blago, but many of them did.

Now, bear in mind that the court has already said this in its opinion:

Because the charges are complex, the trials long, and the issues numerous, an effort to relate many details would produce a book-length opinion. Instead we present only the most important facts and discuss only the parties' principal arguments. All else has been considered but does not require discussion.

So the court's statement about Blagojevich's overwhelming guilt and the generally frivolous nature of his appeal covers the overwhelming portion of the case. That's important so the next section can be read in context, which seems to be where many reporters failed.

But a problem in the way the instructions were told the jury to consider the evidence requires us to vacate the convictions on counts that concern Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet.

So, just to take it slow, Blagojevich is overwhelmingly guilty and his appeal overwhelmingly frivolous, but there was an issue with the jury instructions regarding the multiple counts concerning a single aspect of the case: the (potential) Valerie Jarrett appointment.

A jury could have found that Blagojevich asked the President-elect for a private-sector job, or for funds that he could control, but the instructions permitted the jury to convict even if it found that his only request of Sen. Obama was for a position in the Cabinet. The instructions treated all proposals alike. We conclude, however, that they are legally different: a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for private payment.

In other words, Blagojevich made several proposals regarding the possible appointment of Jarrett - some (or one) illegal, another simply a form of hack-but-legal politics. The court is saying that the judge should have specified this to the jury instead of lumping the proposals - legal and illegal - together. When the jury convicted on these counts, the court says, maybe they were convicting on one of the proposals that was actually legal.

The opinion's author, Frank Easterbrook, then spends a considerable amount of time describing why political logrolling is simply politics - if it doesn't contain the elements needed to become a crime. Perhaps this got too much attention of some reporters - especially reporters who all along have tried to dismiss Blagojevich's actions on the whole as simply politics. But the court clearly states that Blagojevich massively violated the law. And on the Jarrett incident, the court does not clear Blagojevich, but merely states that, given a more specific set of jury instructions, perhaps a jury would find differently. Given the evidence the court lays out, that seems quite unlikely. But it is an error made by the judge nonetheless.

The remedy isn't to overturn those counts - at least not in the way we civilians understand that term - but to vacate the counts and allow prosecutors to accede to the reduction of guilt or take Blagojevich back to court to try again with proper jury instructions. It seems unlikely prosecutors will do so, given the time and energy it would take, as well as the circus atmosphere that would once again surround the proceedings. Beyond that, for what? As the court states, even without those counts, Blagojevich's sentence remains well under federal guidelines, and is not likely to change.

As a matter of process, however, the case goes back to the district judge - James Zagel - for him to reconsider Blagojevich's sentence, just in case he added time based on the jury's finding on these particular counts. It is unlikely that he did so, because, again, he found a number of ways to reduce the sentence from federal guidelines, and sentences on each count run concurrently anyway. The only way Zagel should find it necessary to reduce Blagojevich's prison time in this instance would be if the sentences corresponding to these counts run longer than any of the others.

I haven't looked it up, but I'm pretty sure they don't.

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"The indictment also charged Blagojevich with wire fraud," the court said next. "That the negotiations used the phone system is indisputable, but where's the fraud?"

The court goes on to argue that Blagojevich didn't commit fraud over the phone because nobody was fooled; everybody was in on the game.

Again, Easterbrook spends far too much time elaborating on a cynical view of politics that allows for and even expects mistruths. While it's true that lying isn't necessarily illegal (unless you do so to an FBI agent), you could see how prosecutors felt Blagojevich used the phone to further his multiple schemes. Nonetheless, throwing out this charge again isn't likely to reduce Blago's sentence.

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And that's pretty much it. Oh, the court takes up a few other issues, but on those does not rule in Blagojevich's favor. So you can see that it was not a good day for the ex-governor - despite what so many media reports declared. His appeal fell flat on its face. The issues Blagojevich won are likely to be non-consequential, as if a ball might be changed to a strike without the final score being affected.

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And yet . . .

True only insofar as the ex-governor is likely to be re-sentenced to the very same sentence. Or, more like, his sentence will be reconsidered and then upheld.

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And yet . . . Korecki has this tweet pinned to the top of her feed.

This gives a false impression of the court's use of the word "appropriate." In fact, the court didn't "urge" Zagel to re-sentence Blagojevich in a more appropriate manner befitting the bouncing of five counts. It merely said the judge should consider if he still thinks his sentence is appropriate, given that five counts have been vacated - while also noting that, given the sentencing guidelines, a reduction is far from assured.

In fact, the court goes to some effort to illustrate just how favorable the current sentencing already is to Blagojevich - regardless of reporters who have long had it in their own minds that the sentence was too harsh. Based on, you know, just how they feel.

The court's exact words:

It is not possible to call 168 months unlawfully high for Blagojevich's crimes, but the district judge should consider on remand whether it is the most appropriate sentence.

You can take that out of context and read it Korecki's way, as she does here . . . :

. . . or you could take it into context and read it the way the court intended, which is in a wholly neutral fashion.

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Korecki has always been soft on Rod's brother, Robert, who once was a defendant in the case himself. Remember that car trip? (The article doesn't appear to be online; my guess is that it's disappeared with so many others given the various iterations of the Sun-Times's website, but it's still in the databases: "With their attorney Michael Ettinger, [Robert and Julie] spoke with a Chicago Sun-Times reporter during a trip from their home in Nashville to visit their son Alex in Chicago." The companion sob story was "The Other Mrs. Blagojevich Speaks.")

When I challenged Korecki on those articles in person years ago - particularly the absence of any tough questioning - she told me that "You get what you can get." Sadly, that's what some journalists believe. In this case, that means you get bullshit, and you publish it. It's the epitome of access journalism - access to bullshit. No wonder Korecki is this town's Robert Blagojevich reporter - always willing to record his latest whine about Jesse Jackson Jr., or quick to get his comment about somesuch, which he's always willing to give to her. No need to wonder why. So, this:

I would agree - if I thought Robert Blagojevich understood at that moment what the ruling said. He probably knew nothing more than what Korecki (wrongly) told him.

Further, it's hard to see how Robert cares, beyond the reflection upon himself and his own case, given that he reportedly has not spoken to his brother since the trial ended, returning to the estrangement that gripped them years before. That might be worth asking about, seeing as how the media played up at trial the defense team's narrative of two brothers reunited for their mother's sake (and not to save their own skins).

See also: Retry Robert!

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"Tells the Sun-Times," like it's an exclusive. Exclusive bullshit.

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Oops.

By this time, reporters were figuring out why the Blago camp was so depressed.

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Your job is not stenography.

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In the end, Korecki decided the ruling didn't mean much at all. (Sort of, if you click through.)

After all that.

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Greg Hinz, of Crain's, latched on to language in the ruling that I'm guessing is most in line with his worldview and twisted it into this:

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Chuck Goudie, of ABC7 Chicago, had the ruling as a win for Blagojevich.

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This was me from the get-go:

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And now, doing some correcting:

*

*

One who got it right.

His post.

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Another who got it right. By this time in the day, the reality of the ruling was starting to sink in.

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Not everyone got the (right) news. Unless . . .

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Goudie gonna Goudie.

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NBC5 Chicago got it turned around by the time it went on at 5.

Not what the initial reports indicated, is it?

*

In a display that showed just how bereft Blagojevich's case is, attorney Leonard Goodman stood in front of the family home on Tuesday and made the same arguments that the appellate court had just, in Marin's word, eviscerated.

"Goodman said Tuesday that the appellate court erred in three ways. He said it's relevant that Blagojevich thought his actions were legal . . . "

I didn't discuss it here, but the Easterbrook spends a fair amount of time in the court's order destroying this argument.

" . . . and he said jurors received bad instructions on extortion law."

Dealt with.

"He also said those jurors never heard evidence that Blagojevich tried to separate Senate talks from his efforts to obtain campaign contributions from former U.S. Rep. Jesse Jackson Jr."

Only after he thought someone was listening. Besides that, the court said this:

Much of Blagojevich's appellate presentation assumes that extortion can violate the Hobbs Act only if a quid pro quo is demanded explicitly, but the statute does not have a magic words requirement. Few politicians say, on or off the record, "I will exchange official act X for payment Y."

Similarly persons who conspire to rob banks or distribute drugs to not propose or sign contracts in the statutory language.

"Nudge, nudge, wink, wink, you know what I mean" can amount to extortion under the Hobbs Act, just as it can furnish the gist of a Monty Python sketch.

And with that, the Blagojevich farce comes full circle.

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Comments welcome.



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Posted on July 22, 2015


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