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Can Bartering Official Acts Ever Be Legal? | Question of Ethics

Q. I am hoping you can explain the recent ruling on Rod Blagojevich’s appeal of his corruption convictions. I know that the court upheld nearly all of his convictions, but I was interested to see that the court threw out several as well. Why did it do this, and is there any significance to the decision? A.  Some political trades are legal. Some are not. That distinction is at the heart of last month’s decision by the Seventh Circuit Court of Appeals in the case of former Illinois Gov. Rod Blagojevich.  

In 2011, Blagojevich was convicted of 18 crimes stemming from conduct while governor of Illinois. The crimes included lying to the government, attempted extortion from campaign contributors and corrupt solicitation of funds, among others.  

On appeal, Blagojevich argued the evidence was insufficient to convict him on any of the charges. For 13 of the 18 charges, the court disagreed, calling Blagojevich’s argument “frivolous.”  

“The evidence, much of it from Blagojevich’s own mouth, is overwhelming,” the court said.  

Nevertheless, for five counts relating to Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet, the court vacated his convictions. Why? The answer has to do with the distinction between two different types of “trades,” one which the law allows and one which it does not.  

The typical “quid pro quo” that federal law prohibits is straightforward: a public official performs an official act in exchange for a private benefit, such as money. The type of “quid pro quo” the law allows takes a slightly different form: the swap of one official act for another.  

The court posed several examples of these types of permissible swaps, which it called “political logrolls,” including a representative who agrees to vote for milk-price supports if another representative will agree to vote for tighter controls on air pollution.  

"It would be more than a little surprising to Members of Congress,” the court said, if the court were to make it a crime to engage in “everyday politics” such as this. Indeed, the court said, it was unaware of any instance “in the history of the United States” where logrolling had been the basis for a criminal conviction. “Governance would hardly be possible without these accommodations,” the court said, “which allow each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”  

The problem the court found with the five Blagojevich convictions it vacated was that it was unclear from the record whether they were based on the type of swaps the law allows or the type it does not.  

After Barack Obama was elected president in 2008, the task of filling Obama’s vacant Senate seat belonged to Blagojevich, who allegedly sought a favor from Sen. Obama in exchange for filling the seat with Valerie Jarrett, whom Blagojevich believed to be Obama’s preferred choice. The jury heard evidence of at least two favors that Blagojevich allegedly requested in return for naming Jarrett: Either appoint Blagojevich to the Cabinet or persuade a private foundation to hire him at a substantial salary after his term as governor.  

From the record, the court said, it was unclear which of these requested favors led to the jury’s decision to convict. Whereas a request for a private job with a substantial salary could validly form the basis for a conviction, the court said, a request for a Cabinet position could not. Why? Because appointing a Cabinet member is an official act. “A proposal to appoint a particular person to one office (say, the Cabinet) in exchange for someone else’s promise to appoint a different person to a different office (say, the Senate) is a common exercise in logrolling,” the court said — not a crime.  

The court rejected prosecutors’ argument that the fact that Blagojevich himself was to receive the Cabinet position changed the analysis at all, answering that such deals are not uncommon. “The current Secretary of State [John Kerry] was appointed to that position from a seat in the Senate,” the court said, “and it wouldn’t surprise us if this happened at least in part because he had performed a political service for the President."  

The message from the Blagojevich decision, then, seems clear. Exchanging an official act for a private benefit is a federal crime. Exchanging an official act for an official act is not.  

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice . See photos, follies, HOH Hits and Misses and more at Roll Call's new video site. Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.