Monday, November 12 , 2018, 10:51 am | Smoke 68º


Susan Estrich: Crazy Like a Fox

The Illinois governor may or may not have done anything wrong, but he knows exactly what he's doing.

As the weeks pass since Illinois Gov. Rod Blagojevich was publicly drawn and quartered by U.S. Attorney Patrick Fitzgerald, the man has simply refused to give up. The Energizer bunny has nothing on this guy. I can’t say he’s earned my respect — respect would definitely be the wrong word — but he’s proved that some of the oldest, and worst, rules of politics still hold true. Hang in there long enough and you can survive anything. Anything. Poor Eliot Spitzer. He would still be governor of New York.

Susan Estrich
Susan Estrich
It is far from clear that Blagojevich is actually a criminal, as opposed to an accused criminal. His mouthing off on tape about what he could “get” for President-elect Barack Obama’s Senate seat was stupid, offensive, tasteless and inappropriate. It was unbecoming any public official — far, far worse than Spitzer’s tasteless stupidity in traveling to Washington to meet up with a hooker barely older than his daughter.

But Spitzer’s activity was a betrayal of his wife, not his constituents. Blagojevich was playing with the public trust. Whether he broke the law is another question.

Of course it’s against the law to sell a Senate seat. But Blagojevich didn’t sell the seat — he might have, but he never got that far. In our system, you can think anything you want and say almost anything you want. It’s what you do, as opposed to what you say, that can get you in trouble.

There’s no law against talking about selling a Senate seat, as long as you don’t enter into an agreement, explicit or implicit, with someone else to do it; that’s a conspiracy. An agreement to do something wrong and any overt act in furtherance of the conspiracy (contacting one of the potential candidates, for instance) by any of the conspirators can turn all of them into federal felons.

The way prosecutors usually deal with guys like Blagojevich, who say things they shouldn’t but can’t be prosecuted for, is to drag them in front of a grand jury and ask them if they ever said what they know they said. Then, when under oath, if they deny ever saying it, they’re guilty of perjury. Think former White House aide Scooter Libby.

Public officials are particularly bad about shutting up in these circumstances; only professional criminals understand that the embarrassment of looking like a criminal is nothing compared to the reality of being punished for committing an actual crime. Indeed, even without the grand jury, which gets you to perjury, you can turn a person into a felon if he or she simply makes a false statement to a government official — no oath required.

But there’s no evidence that Blagojevich did either of those things. Because of the leaks and impending public disclosure, Fitzgerald was forced to move on Blagojevich before he had a chance to do to him what he did in his Valerie Plame investigation: get everyone in front of a grand jury where they could say that they never said what they actually did say. Which means there is a chance, a very real chance, that Blagojevich could beat this.

He knows that. That’s why he’s going nowhere. He also knows that if you just hang in there and make some smart moves, you can make other people almost as uncomfortable as you are about what you’ve done wrong.

That’s what he did this week by sending Roland Burris, a decent and honorable man who would have been the Senate’s only black member, to be turned away by the secretary of the Senate. Lucky for the rest of us, Obama is the president-elect, and so those who would turn Burris’ rejection into a racial affair are having a little more trouble than they otherwise would. But it hasn’t stopped the effort. The Congressional Black Caucus is not the only group in town saying it is wrong to turn away the one black member of the Senate, and the drama will continue to play out in coming weeks.

Maybe Burris can get the signatures he needs back in Illinois. Maybe the Senate will cave. In the meantime, Blagojevich is going to work every day, and Fitzgerald has his work cut out for him. It’s very hard to get a guy who can stand the heat out of the kitchen.

Illinois may be short a senator, but Blagojevich is still cooking with gas.

Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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