Crime, Sin, and Politics

by Ronald Rychlak - February 3, 2009

Reprinted with permission.

On January 9, the Illinois House deliberated less than 90 minutes before voting 114-1 to impeach Gov. Rod Blagojevich. The case then went to the state senate, where on January 29 he was convicted by a vote of 59-0. Illinois legislators may tolerate some corruption, but they will not stand for the incompetence of being caught red-handed.

Federal authorities had wiretapped Blagojevich talking about selling President Barack Obama's vacant Senate seat to the highest bidder. During one recorded conversation, the former governor reportedly said that he was financially hurting and that he wanted to "make money" for his family. He also weighed the option of appointing himself to the Senate, saying he was "stuck" as governor and might have access to more resources as a senator. He even thought that a Senate seat might help prepare him for a 2016 presidential bid.

Despite this evidence, Blagojevich has been defiant. At a press conference called to address the charges, he explained:

I'm going to continue to fight every step of the way. Let me reassert to all of you once more that I am not guilty of any criminal wrongdoing. That issue will be dealt with on a separate course in an appropriate forum, a federal court. And I'm confident that at the end of the day I will be properly exonerated.

Actually, Blagojevich might be right. As embarrassing and politically damaging as the evidence is, it is not clear that he violated any criminal laws.

The former governor may have conspired or attempted to solicit a bribe, but uncompleted or inchoate crimes like these are very hard to prove. Prosecutors have to establish some level of activity by the defendant (often termed a "substantial step"). The court needs to see the action in order to be certain that the intent is really there.

Crime is different from sin in that way. It takes both intent (mens rea) and action (actus reus) for there to be a crime. When it comes to sin, however, the intent alone is wrong. That's what Jimmy Carter meant when he famously said that he had committed adultery in his heart. More directly to the point, the late George Carlin irreverently explained sin as follows:

It's what's in your mind that counts! Your intentions! That's how we'll judge you – what you want to do! Mortal sin: had to be a grievous offense, sufficient reflection, and full consent of the will. You had to wanna! In fact, wanna was a sin all by itself! "Thou shall not wanna!" If you woke up one morning and said, "I'm gonna go down to Seventh Avenue and commit a mortal sin," save your cab fare; you did it, man!

Blagojevich may have contemplated soliciting a bribe; he may even have wanted to do so, but he nominated the former Illinois Attorney General Roland Burris to fill the Senate seat. No one has suggested that Burris paid a bribe for the appointment. Nor, for that matter, have any other politicians come forward to say that Blagojevich solicited a bribe from them. As such, it's going to be hard to criminally convict him for attempted solicitation of a bribe.

What about conspiracy – agreement to commit a crime? In this case, the evidence suggests that there might have been a conspiracy to ask for a bribe, but there was no agreement to give and receive a bribe. In other words, we have a double inchoate crime – conspiracy to attempt to solicit a bribe. That will be a tough case for the prosecution to make.

The prosecution probably moved too soon in this case. In my law classes, students study several cases involving police stopping criminals too early. In one case, the police stopped a group of men on the sidewalk outside of a bank. They had weapons and seemed to be intent on pulling off a robbery. Nevertheless, the court dismissed the charges, concluding that the crime – even the attempted crime – had not yet taken place because they had not yet entered the bank. The same may be true with Blagojevich.

So why did the authorities arrest Blagojevich when they did, rather than wait until they clearly had the goods on him? U.S. Attorney Patrick Fitzgerald explained: "We were in the middle of a corruption crime spree and we wanted to stop it." He also expressed concern about the senatorial appointment and laws that the governor might have signed had the prosecution not intervened. But that's not much of an explanation.

The truth is most likely that Fitzgerald's hand was forced when the Chicago Tribune broke the story about the wiretaps. There has been some speculation that the newspaper did this to prevent the investigation from ensnaring favored politicians whom Blagojevich may have been considering for solicitations, but that's far from certain. Tribune officials may simply have wanted to expose the wiretaps that revealed Blagojevich trying to get some members of the editorial board fired in exchange for state help in selling the Chicago Cubs (which the paper owns). At his news conference on the matter, Fitzgerald said, "I laid awake at night," worrying about the possible firing of the editors.

Of course, the big question is related to alleged connections between Blagojevich and the Obama administration. Details are forthcoming, but it does not seem likely that the president's people were tied into any nefarious activities that took place in the governor's office. One of Blagojevich's main complaints seems to have been that the Obama people were not offering him anything in exchange for his appointment power. That indicates that they were not in on any alleged conspiracy.

We cannot see into the hearts of men, so we do not know about sins that may have been committed. As for other matters, it is likely that Blagojevich's political career is over (the Illinois Senate tried to make certain of that by barring him from ever holding office in the state), but a criminal conviction is far less certain. President Obama will probably avoid any significant political damage. And to the surprise of no one from the north side of Chicago, the Cubs are somehow in the middle of the whole stinking mess.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).