The Libertarian Case for Blagojevich
The sensational charges against Illinois Governor Rod Blagojevich - that he tried to "sell" Barack Obama 's abandoned U.S. Senate seat and threatened to withhold state support from the Chicago Tribune's parent company unless it fired members of the newspaper's editorial board - should alarm libertarians, though not for the reasons offered by prosecutors and the press. Nearly one month has passed since FBI agent Daniel Cain filed a criminal complaint against Blagojevich, yet he has not been indicted, something which is supposed to occur within 30 days. Chicago U.S. Attorney Patrick J. Fitzgerald now claims his case isn't ready to proceed, so he wants a 90-day extension.
The complaint's first count states that Blagojevich and his former chief of staff, John Harris, "did, conspire with each other and with others to devise and participate in a scheme to defraud the State of Illinois and the people of the State of Illinois of the honest services of Rod R. Blagojevich and John Harris, in furtherance of which the mails and interstate wire communications would be used..." (Emphasis added.) This refers to a number of instances where Blagojevich allegedly demanded compensation, either directly or in the form of campaign contributions, in exchange for performing certain official acts. The feds consider this "fraud" and place it under their jurisdiction since Blagojevich used phone systems that cross state lines.
The improper federalization of so-called derivative offenses has been well criticized by many libertarians, notably William Anderson, and I won't revisit the subject here. The more interesting question is whether the accusations against Blagojevich actually constitute "fraud." Stephan Kinsella has argued, persuasively in my view, that,
for the libertarian, fraud is a type of aggression (namely, theft), just because it is a means by which one party receives or uses or takes the property of someone else without their consent - and there is failure of consent because the first party's misrepresentation meant that one of the conditions to transfer of title was not satisfied.
Blagojevich is undoubtedly dishonest, devious and shameless. Such traits are emblematic of the state itself - but they don't prove Blagojevich committed fraud.
In one case, the complaint says Blagojevich and his deputy discussed withholding state reimbursements from a hospital unless an executive at that hospital made a campaign contribution. In another case, Blagojevich allegedly received a $60,000 contribution from an engineering firm, in exchange for which the governor supported a General Assembly bill that would spend billions on "infrastructure" - with some of that money going towards the engineering firm. The problem here is that for fraud to take place, according to Kinsella, "there must be a victim of the fraud, and the victimization must be of a type in which there is an ostensible title transfer but which fails because of lack of true consent." So who are Blagojevich's victims? It's definitely not the rent-seeking hospital or engineering firm that Blagojevich solicited campaign contributions from. As for the taxpayers, they were victimized when the state seized their property through the original act of taxation - not when the stolen property was allocated among the thieves.
The federal complaint tries to finagle this issue by arguing Blagojevich actually deprived the people of Illinois of his "honest services." But this is rhetorical gibberish. Theoretically, "the people" contracted Blagojevich for his "honest services" as governor, and he received a salary in return. Applying the Kinsella rule, there is fraud if Blagojevich failed to meet the agreed-upon conditions of receiving his salary. But this assumes - incorrectly - that there's a contractual relationship. The Illinois constitution is not a contract. And even if it were, the "honest services" standard appears nowhere in the text. The state constitution does grant the House "the sole power to conduct legislative investigations to determine the existence of cause for impeachment." So if there is a breach, it's up to the House to investigate and prosecute, not the FBI or the United States Attorney.
In the context of politics, "honest services" is a meaningless standard of legal liability. Consider the most explosive charge against Blagojevich: the attempted "sale" of the vacant U.S. Senate seat. The federal Constitution and Illinois law vest sole authority for appointing a replacement senator with the governor. There are no limits or qualifications on this power, aside from the constitutional requirements that a senator be 30 years of age, a citizen for nine years and a resident of the state represented. Blagojevich can appoint anyone meeting these standards to the Senate. He could appoint his wife, his college roommate or even himself (which he apparently considered.) There is no constitutional or statutory restrictions on how Blagojevich must reach his decision.
For all its bluster, the criminal complaint mostly describes conversations among Blagojevich and his advisors over what someone might promise the governor in exchange for appointing a given person to the Senate. A discussion over a hypothetical exchange of promises does not rise to the level of fraud. And even if such an exchange took place, there is no "victim of the fraud," since no title to property is transferred without consent. A Senate seat - or any government office - is not property in and of itself, and even if Blagojevich receives property in return for the appointment, that does not establish fraud against the "people of the State of Illinois."
The "honest services" test fails because, among other reasons, it's impossible to objectively distinguish between legitimate and illegitimate political motives. Just compare the controversy in Illinois with the other Obama-created Senate vacancies. In Delaware, the governor replaced Joseph Biden, Obama's vice president-elect, with a longtime Biden aide, whom everyone recognizes is a placeholder until Biden's own son, the state attorney general, can run for the seat himself in 2010. And in New York, there has been steady political pressure on Governor David Patterson to appoint Caroline Kennedy - the daughter of a former president with no political or electoral record - as a replacement for Hillary Clinton. Kevin Sheekey, an aide to New York City Mayor Michael Bloomberg, told the Financial Times that Kennedy was the best choice because she would be loyal to the Obama administration: "The idea that we would pass up appointing someone to the Senate who is both a friend and a critical supporter of Barack Obama is political malpractice." So, does "political malpractice" equal or trump "honest services"?
The problem of motives also clouds the second count of the federal complaint, which alleges that Blagojevich,
corruptly solicited and demanded a thing of value, namely, the firing of certain Chicago Tribune editorial members responsible for widely-circulated editorials critical of Rod R. Blagojevich, intending to be influenced and rewarded in connection with business and transactions of the State of Illinois involving a thing of value of $5,000 or more, namely, the provision of millions of dollars in financial assistance by the State of Illinois, including through the Illinois Finance Authority, an agency of the State of Illinois, to the Tribune Company involving the Wrigley Field baseball stadium . . .
Prosecutors maintain Blagojevich improperly used his office to "exert financial pressure on the owners of the Tribune Company" to fire anti-Blagojevich editorial writers. The truth is a bit murkier. Tribune secretly approached the IFA and asked it to buy Wrigley Field - using $250 million in bonds - so that Tribune could pay down some of its massive debt. Blagojevich, who appoints the IFA's directors, was understandably reluctant to endorse a state bailout of Tribune while the newspaper's editors were simultaneously calling for his impeachment. As the criminal complaint notes, "IFA's role is to support the Governor of Illinois' economic development agenda." Keeping the governor in office is presumably part of that agenda. As long as you have a monopoly government - with things like "economic development agendas" - there will be a constant, clandestine stream of rent-seekers trying to profit. It's ludicrous to single out Blagojevich in this context and pretend like he's committing "fraud" when what we're really talking about is a group of criminals arguing over how to divide the proceeds of their robbery and plunder. If anything, Tribune is guilty of fraud, not Blagojevich.
For that matter, Patrick Fitzgerald and his federal junta haven't rendered "honest services" to the people either. First, the criminal complaint failed to prevent Blagojevich from appointing a senator - the very act that Fitzgerald's premature arrest of the governor was supposed to prevent. Second, Fitzgerald has placed his own criminal investigation above the Illinois General Assembly's impeachment proceedings. In a December 22, 2008, letter, Fitzgerald rejected the Illinois House's request for access to his evidence against Blagojevich because "we have concluded that producing those items at this time could significantly compromise the ongoing criminal investigation." In other words, it's better to withhold information about the misconduct of public officials from the people and their elected representatives then to risk Fitzgerald's ability to punish Blagojevich for misusing interstate telephone lines. If Leon Jaworski had acted this way during Watergate, Richard Nixon would've retired as a successful two-term president.
Frankly, the timing of Fitzgerald's complaint suggests he was more concerned with holding on to his own job then forcing Blagojevich out of his. By arresting now and indicting later, it's politically impossible for Barack Obama to fire Fitzgerald - as a new president customarily replaces U.S. Attorneys with his own political appointees - and few among the political or media elite will seriously question Fitzgerald's own conduct so long as Blagojevich continues to defiantly hold onto his own office. But "selling" a U.S. Senate seat - or talking about it, anyway - is a misdemeanor compared to Fitzgerald's felonious power grab.
Comments (11)
Richard Daley
Cook County should be its own state. That way, the people who live the rest of Illinois might get a more sensible state government.
Published: January 5, 2009 1:53 PM
Ben Burkley
Sometimes I think articles are written here just to be contrarian. Not that I disagree with you in your logic about the word fraud. It just seems to me that, there is enough corruption in our government. We do not need an individual gaining personal wealth by selling the rights to power over the people of the state. (that is the real argument. A senator supposedly is given power as a representative of the people.) If anything, the money that was promised to the gov. should be split up and given to the people as a ransom for their freedom. If we looked at it this way, I think that we would have a much harder time "electing" persons to govern us.
Published: January 5, 2009 2:40 PM
Dick Fox
I love people with courage and S.M. Oliva certainly has courage. I doubt there are a handfull of people who would come to the support of Blagojevich yet as Oliva points out there is no indictment. They say where there is smoke there is fire but that depends on what the investigator is smoking.
This had a bad smell to me from the beginning. It is reasonably common knowledge that the Chicago political system is corrupt from top to bottom and I believe that is what Fitzgerald was counting on. It does not appear Fitzgerald has any evidence but he had determined that Blagojevich was guilty so he turned up the heat to see if any roaches would scurry his way.
What Fitzgerald doesn't understand is that Democrats are different from Republicans. He knew before he began his investigation in the Valerie Plame incident who had leaked her name. His total intent was to catch someone in a lie or uncover other wrong in the Bush administration. As it was he caught a virtually innocent Scooter Libby trying to shade the truth to protect someone who was also innocent. This is Fitzgerald's MO and it appears he is attempting to use a similar method. But what is different is that Republicans care about fraud and the truth while Democrats do not. I doubt Firzgerald will get any more than he has now and if he can't indict now he won't be able to later.
This is simply political theater. These guys love to ruin lives.
Published: January 5, 2009 2:56 PM
Bill Anderson
I think this is the best piece I have read on this whole sorry affair. Skip is NOT standing up for Blago and the group of whores in Illinois; he is standing for the law. It is my contention that the "honest" guy Fitzgerald is doing more violence to the law than is the "crooked" Blago.
The point about the failure to indict is not trivial. This is a political prosecution, pure and simple, and while I have no use for Blago and his ilk, he openly is acting like a politician. So is Fitzgerald.
Published: January 5, 2009 3:19 PM
Richard Daley
Dick Fox said: "But what is different is that Republicans care about fraud and the truth while Democrats do not."
I wouldn't say that Republicans care about fraud and the truth while Democrats do not (*perhaps* rank and file Republicans do moreso than rank and file Democrats).
Republican politicians have to "care" about fraud and the truth because they do not have the cover of the MSM, and the double standard vis-a-vis fraud and truth is in the Democrats favor.
Published: January 5, 2009 4:19 PM
Franklin
Neither Republican nor Democrats care about fraud more than the other; they have one priority -- to be re-elected. All else is secondary.
And please refrain from any "Yes, I know what you mean, but I still have to say that the Republicans are much more likely to uphold an ethical....."
Pffft.... Please... It's all rubbish. All of it. I still fondly remember my great Dad, recognizing the hypocrisy in our Congress, recognizing that corruption was party-agnostic, but still, contrary to the evidence (and he was quite a bright and accomplished man) could still not admit that his party was just as despicable as the other. Go figure.
Sleazy Blagojevich was not sophisticated enough to cover his ass and protect himself sufficiently. He was an unusually clumsy and arrogant public servant. And that's really saying something.
Selling political seats is not only SOP in this crumbling republic. It is an implicit part of the job description. Has been for quite a long, long time.
So long as we continue to think that the Republicans or the Democrats or whomever are inherently superior than their opponents, the banal, "American Idol"-like cheerleading and arguing will provide a splendid distraction for the gangsters who are addressed as "Honorable." Discussions of the nature and role of government among free people continue to be displaced by yahoo polls, asking which candidate do we prefer for our backyard barbecue. This is just the kind of atmosphere the politicians embrace -- a perfect distraction away from any discussions pertaining to the limits of power -- perfect distractions away from the real questions they need to answer: "Who the hell are you to have any say whatsoever as to how I run my life, my business, and my personal affairs? And why the hell do even need your position anyway?!"
Cheers.
F.
Published: January 5, 2009 8:55 PM
Robert
It may also be the case that Blagojevic was not even selling the Senate seat after all. This article:
http://strata-sphere.com/blog/index.php/archives/7428
suggests that it was Team Obama pressuring Blagojevic to abandon his own preferred appointment, as Team Obama was not happy about the likely successor, and pressuring the sitting governor to defer to Obama's wishes.
Published: January 5, 2009 9:24 PM
Lurker
Aww, I was expecting this to be an ancap argument in favor of selling the seat, "free-market" style.
Published: January 6, 2009 1:10 AM
newson
as franklin says, only with a sense of irony could one use "honorable".
"man of honor" (uomo d'onore) seems more appropriate!
Published: January 6, 2009 8:34 AM
Brad
Ben, I don't think the article was necessarily saying that something reprehensible didn't happen, it was saying that define just what the offense really is instead of using the term fraud. To me the use of that term is Doublespeak, in that it means what they want it it to mean even if it generally has a different meaning the rest of the time. It is a convenient place holder word, complete with its connotation, because to use a word or phrase nearer to what the offense really is borders very closely to the ordinary course of Political business. What Blago did is much closer to the daily "sale" of favors for votes and power than it has to do with fraud. So if they used words like "selling influence" or "selling connections" or what have you it would be nearly indistinguishable from every other action the State takes beyond the protection of life and property. And so - Doublespeak. Perhaps, too, this is why Blago really doesn't think he did anything wrong. Corruption is such a part of the Chicago/Cook County/Illinois machine that those who participate in it are so conditioned to it that something as offensive as personal gain for a public seat is right down the heart of the plate of everyday "machine" business.
Published: January 6, 2009 1:57 PM
hazeleyes
I am remembering The Old Mayor Hizzoner's friend Paddy Bauler's infamous quote: CHICAGO AIN'T READY FOR REFORM!
Is Chicago ready yet? Is Illinois?
A few weeks ago I heard someone on radio mention that Obama got the US senate seat because Chicago pols wanted him out of the state instead of in the Illinois governorship -- they didn't want him playing in their back yard anymore.
The Blago office-selling flap raises interesting questions.
Let's all watch to see if any dots appear between ethics changes that Blago wanted and the US senate seat 'scandal'.
Chicago has seen much worse than the sale of political office, and in fact speaking of sale of political offices, if local pols are so offended about the sale of a senate seat, where were they when Mayor Daley held back Cook County's vote talley the night Cook County elected Jack Kennedy? And which judge promised Joe Kennedy his kid would be elected by Chicago?
This paragraph from the ethics change story is something that for sure would set Chicago machine policians' hair on fire:
"Blagojevich last month used his amendatory veto power to expand the contractor donation ban to lawmakers and all state officeholders. He also tried to change how pay raises would be voted on, bar lawmakers from holding most other government jobs and require them to more fully disclose lobbying work"
With lawmakers and state office-holders' 'donations' from contractors, self-voted pay raises, and other sources of off-the-books income in jeopardy, you better believe that the whole state legislature, not to mention every Chicago machine politician past, present, and future would want Blago gone.
From the 'reform' story: “Let’s go ahead and give the people of the state of Illinois what they want and what they deserve,” Fritchey said
Oh yeah. And he was using the one-finger salute to let his audience know exactly what he meant.
Cynical? Yes, but I've been living in and near Chicago since Hizzoner was king...er, I mean Mayor.
--------------------------------------------------------------------------------
"Is Illinois ready for ethics?
The House undid in about two minutes the sweeping ethics reform rewrite Blagojevich spent two months putting together.
The House voted 110-3 for the original version of House Bill 824 that lawmakers passed in May. That version would bar people with state contracts worth $50,000 or more from making political donations to state officeholders overseeing the contracts.
Blagojevich also issued an executive order effective Jan. 1 barring people with high-dollar contracts with agencies under his control from giving donations to any state officeholders or lawmakers.
Blagojevich last month used his amendatory veto power to expand the contractor donation ban to lawmakers and all state officeholders. He also tried to change how pay raises would be voted on, bar lawmakers from holding most other government jobs and require them to more fully disclose lobbying work.
Rep. John Fritchey, D-Chicago, said lawmakers should consider the changes in separate bills that he filed Wednesday, not in a take-it-or-leave-it vote.
“Let’s go ahead and give the people of the state of Illinois what they want and what they deserve,” Fritchey said.
The vote came just hours after Blagojevich had urged lawmakers not to override his changes because he fears they will be stalled if they’re put into separate bills.
If the measure isn’t voted on in the Senate within 15 days, the entire bill and the changes die."
Published: January 10, 2009 12:01 AM