Former Gov. Rod Blagojevich will have another day in court, but his hopes of being freed from prison anytime soon remain dim at best.
In a long-awaited ruling, a federal appeals court in Chicago threw out five of 18 counts against Blagojevich, vacated his 14-year sentence and ordered him retried on the five counts.
But it remained uncertain how Blagojevich’s fate would ultimately be resolved — prosecutors could opt against a third trial, throw out the disputed counts and proceed to a resentencing on the remaining convictions.
While finding the five counts invalid on technical grounds, the 7th U.S. Circuit Court of Appeals called the evidence against Blagojevich “overwhelming” and made clear that the former governor wouldn’t be released from prison in the meantime.
“It is not possible to call the 168 months unlawfully high for Blagojevich’s crimes, but the district judge should consider on remand whether it is the most appropriate sentence,” Judge Frank Easterbrook wrote in the unanimous opinion by a three-judge panel.
If prosecutors elect to drop the counts that were thrown out on appeal, then U.S. District Judge James Zagel should “proceed directly to resentencing,” the opinion stated.
The U.S. attorney’s office in Chicago had no immediate comment Tuesday. Both U.S. Attorney Zachary Fardon and his top assistant, Joel Levin, likely won’t be involved in deciding how the office responds to the court’s ruling because of their representation of Blagojevich co-defendants while in private practice.
Blagojevich’s wife, Patti, is scheduled to hold a 5 p.m. news conference with her husband’s attorneys outside the family’s home in Chicago’s Ravenswood Manor neighborhood.
Lauren Kaeseberg, one of Blagojevich’s attorneys, told the Tribune on Tuesday that the defense team was pleased the court acknowledged in reversing the five counts that there was a certain amount of political horse-trading taking place.
“We’ve always maintained that Blagojevich’s actions were done in the political context,” Kaeseberg said. “To the extent of the five counts that were reversed today, the court has shown this was a political case.”
Kaeseberg said Blagojevich was looking forward to a new sentencing hearing regardless.
“Hopefully because of these reversals, Rod’s sentence will be shortened at least and he’ll be able to have some time with his family, who he misses dearly,” she said. “His girls are growing up and he wants to be home as soon as possible.”
Jeff Cramer, a former federal prosecutor, said the ruling did not represent “a victory for Blagojevich,” noting that the court did not find that he was wrongfully convicted.
“This is a technicality on jury instructions,” he said of the decision.
Blagojevich, now 58, was convicted of misusing his powers as governor in an array of shakedown schemes, most famously for his alleged attempts to sell the U.S. Senate seat vacated by Barack Obama after Obama’s 2008 election as president. Blagojevich has been locked up in a federal prison in suburban Denver since March 15, 2012, and is not scheduled to be released until May 2024, according to the Federal Bureau of Prisons website.
The appellate court had mulled the ruling since holding oral arguments more than 17 months ago, a delay that led to speculation over a split among the three judges — Easterbrook, Ilana Diamond Rovner and Michael Kanne — on the panel making the decision.
Blagojevich has long claimed he was no different from other elected officials who leveraged their political power, and much of the 23-page appellate opinion focused on that sometimes gray line between traditional political horse-trading and flat-out bribery.
The court ruled that the instructions given to the jury in the second trial should have differentiated between Blagojevich’s various schemes to sell the Senate seat, in particular his proposal to use his power of appointment to ask for a position in Obama’s Cabinet. The opinion called that a “common exercise of logrolling.”
Another aspect of the scheme — to give the seat to longtime Obama friend Valerie Jarrett in exchange for money — represented a much brighter line of criminal activity, the court held.
“The (jury) instructions treated all proposals alike,” the opinion stated. “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 a private payment.”
The opinion also invoked a key exchange from the December 2013 arguments when Easterbrook pressed a federal prosecutor on how Blagojevich’s conduct differed from a famous political deal supposedly struck more than 60 years ago: President Dwight Eisenhower’s nomination of Earl Warren to the U.S. Supreme Court in exchange for the California governor’s support in the 1952 election.
“If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison,” the opinion stated.
But the opinion was also clear that the evidence against Blagojevich was overwhelming, “much of it from Blagojevich’s own mouth” as a result of wiretaps on his phone and his rambling testimony in his second trial.
The court wrote that while it was forced to reverse convictions on the five counts, prosecutors were “free to try again without reliance on Blagojevich’s quest for a position in the Cabinet” and focus instead on the evidence involving Jarrett, calling it “sufficient to convict.”
Since many other convictions remain and the sentences Zagel imposed were concurrent, prosecutors “may think retrial unnecessary,” the court said.
Cramer said the government will almost certainly throw out the five counts reversed by the court and attempt to defend the 14-year prison sentence Zagel already handed down.
“The appeals court even said the remaining counts still gets you to 168 months,” he said.
In fact, the court noted that Zagel had already found that the original sentence called for under federal guidelines was too harsh.
“He had already given (Blagojevich) more than half off,” Cramer said.