Prosecutors will either dismiss or retry disgraced former Illinois Governor Rod Blagojevich on five of eighteen counts stemming from his corruption trial. Blagojevich will remain in Bureau of Prison custody while serving his 14-year prison term, while his attorneys petition the Seventh Circuit for en banc – a request to have his appeal heard by all of the appellate judges. Given the unanimous decision by Judges Easterbrook, Rovner, and Kanne, his chances of a full rehearing are slim to none, and slim just walked out the door. Very few appellants are granted en banc throughout the year, and this case is likely not going to warrant such a rigorous examination.
The vacatur of the convictions turned on a jury instruction that permitted the finding of guilt if Blagojevich asked for a Cabinet appointment only. This act alone doesn’t offend federal bribery laws, and is a derivative of “logrolling”, a recognized practice in the game of politics. The defining difference in the world of handshakes, plastic smiles, and country club meetings is whether the transaction(s) in question involve the trade of one public act for a private payment. The swap of two public acts falls squarely within the art of politics. Specifically, here it was the potential exchange of a Cabinet appointment for a vacant U.S. Senate seat.
Because of the costs associated with another jury trial, the prosecutors will likely dismiss the overturned counts, and a resentencing of Blagojevich will occur in the District Court. This will give Blagojevich’s attorneys another opportunity to challenge the lengthy sentence and lodge objections that can be revisited on direct appeal, if necessary. I suspect that the advisory Sentencing Guidelines will not change dramatically because of this perceived appellate victory.
Here’s why: Because of a sentencing procedure known as “Grouping” the related counts. The overturned counts will likely yield a similar offense score, and even if the appellate ruling had the effect of lowering the offense level, the ranges between the “Low-End” and “High-End” of this Guideline range can be several years depending on the defendant’s Criminal History Category, which is Category 1 for Blagojevich. Put another way, the prosecutors could still achieve a big sentence while the offense score has been lowered by asking for the “High-End” of the newly calculated sentencing range, a tactic commonly associated with defendants who go to trial.
For all intents and purposes, it is a hollow victory for Blagojevich, and any lowering of his sentence will be relatively minor. This should force Blagojevich to shift his hope to getting new legislation passed that will help white-collar, non-violent offenders. There are several bi-partisan bills that could achieve this but nothing will be known until later this year.