In the play “A Man for All Seasons,” Sir Thomas More chastises his future son-in-law Roper after he says he would cut down every law in England to capture the Devil. “And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?” The danger of Roper’s overzealousness endures today. Although many people charged with crimes may be quite devilish, expanding or ignoring the meaning of our laws to convict them endangers everyone. This is because a law that is applied too broadly makes all of us lawbreakers, subject not to the law itself but to the whims of prosecutors. Thankfully, our courts often still provide an important check on prosecutors who wrongly apply the law, as in the recent ruling by the federal Seventh Circuit Court of Appeals overturning five of 18 convictions against former Illinois governor Rod Blagojevich.
After President Obama’s election in 2008, Blagojevich had the power to appoint Obama’s replacement in the United States Senate. Famously quipping on a wiretap that “it’s a [expletive] valuable thing, you just don’t give it away for nothing,” at different times Blagojevich sought three things from the new Obama administration in exchange for appointing a senator the president would approve of: a presidential cabinet appointment for Blagojevich, a lucrative position with a private foundation, or funding for a new organization that he would lead. The jury did not have to decide which of these specific offers Blagojevich made in order to convict him on five of the charges; they simply had to decide that he did any one of the three. The court ruled that although attempting to make the latter two deals would break the law, seeking a cabinet appointment in the Obama administration would not, and so the court overturned the five convictions based on this theory.
The court reasoned that while asking for money or some kind of direct financial gain in exchange for making an official appointment can be extortion or corrupt solicitation, asking for an official act in exchange for another official act is not. Although this may strike citizens and even some lawyers as merely legalistic hair-splitting, the distinction is important. Despite all the rhetoric about political corruption, a lot of politicking in our government is unsavory but not corrupt. Indeed, far from being something we can cure in representative government, the court made a compelling argument that “logrolling” is a fundamental part of politics. So, to allow a jury to convict Blagojevich of offering to take an official act in exchange for the President taking an official act would make every last one of our elected officials subject to investigations, charges and even convictions for supposedly corrupt actions. As the court reasoned, if the five convictions were upheld “Even a politician who asks another politician for favors only because he sincerely believes that these favors assist his constituents could be condemned as a felon.”
When weighing the evidence against Blagojevich for the remaining convictions, the appellate court made a particularly good zing: “The evidence, much of it from Blagojevich’s own mouth, is overwhelming.” The ruling does not mean the former governor is escaping justice, as the Seventh Circuit upheld the other 13 convictions against him. The ruling may not even change anything for Blagojevich’s punishment: although the court that tried him must re-sentence him based on this ruling, it is possible his prison sentence will not change, for the Seventh Circuit found that the judge was especially lenient in the original sentencing.
Though guilty of illegal, corrupt and quite devilish behavior, it was not proper to expand the scope of the law just to get Rod Blagojevich. Upholding those five convictions would have left every elected official exposed, and not for corrupt behavior, but for engaging in the political process. Too often, it is not only prosecutors but the public that approves of or turns a blind eye to using the law not to punish corrupt leaders like Blagojevich, but to ensnare officials and citizens who are “corrupt” simply because we disagree with them. So we must—again, borrowing from “A Man for All Seasons”—continue to give even the Devil the protection of clearly written law, not because we approve of corruption, but for our own safety’s sake.