Wednesday, December 10, 2008

Fitz Pushes Envelope with Bonds-for-Editorial-Scalps Charge

It’s not terribly nice for a sitting governor to threaten to withhold financial assistance to a newspaper company because one of its outlets is calling for the governor’s impeachment. But is it a federal crime?

That’s one of the tricky questions posed by the case U.S. Attorney Patrick Fitzgerald unveiled yesterday against Illinois Governor Rod Blagojevich. Fitzgerald pushed the legal envelope when he charged that Blagojevich used his aides to solicit a bribe by telling the Tribune Company that a state-backed refinancing of its debt related to Wrigley Field would make more progress if the Chicago Tribune fired editorial writers who had sharply criticized the governor.

“It is novel. I can tell you that,” a former U.S. Attorney in Washington, D.C., Roscoe Howard, said of the newspaper-related bribery charge.

According to an FBI agent’s affidavit, Blagojevich’s wife, Patricia, could be heard in a wiretapped telephone call colorfully proposing that the governor’s aides “hold up that fucking Cubs shit….Fuck them.”

The preliminary charges filed against Blagojevich describe the proposed editorial board firings as a “thing of value” demanded from Tribune Co. Defendants in bribery prosecutions “are usually looking for money,” Mr. Howard said.

“It is kind of interesting as a legal issue whether the firing of certain editorial board members constitutes a ‘thing of value’ under the bribery statutes,” a law professor at Northwestern University in Chicago, Albert Alschuler, said. “There’s an obvious argument it is….The argument the other way is that reading the statute that way would make almost anything a ‘thing of value.’” Sexual favors have been held to be “things of value,” but several lawyers contacted for this article were unaware of any case addressing whether an editorial stance or news coverage met that test.

Alschuler said he expects prosecutors to argue that Blagojevich “taking into account anything other than the greater welfare of the people of the State of Illinois deprives the people of the State of Illinois of their right to honest services.” That stance is one that gives federal prosecutors broad authority to determine when personal interests have been put ahead of the public’s interest, a judgment that is open to dispute in the world of machine politics.

“Anytime you do a favor or anyone does a favor for you, it could be indicted as honest services fraud. It is a scary power,” Alschuler said. “So far, Fitzgerald has been able to get away with it.”

Some lawyers said Fitzgerald’s approach could criminalize some routine practices in Washington, such as the trading of a vote for a supporter’s appointment to a job, a vote for a presidential visit or fund-raiser, or even a vote on one bill or earmark for a vote on another. “How many deals are made every day where someone says, ‘I’ll vote for your bill, Mr. President, if you take my chief of staff and make him chief of staff in this office or that office’?” a former federal prosecutor, Victoria Toensing, asked.

“My objection to all of this is that federal prosecutors are deciding what is good government,” a law professor at Louisiana State University, John Baker, said. “These are accepted practices. If people want to reform that: fine, pass a law reforming it. Don’t let some federal prosecutor decide that after the fact.”

On the other hand, Alschuler said he was not personally troubled by the scope of the Tribune-related charges. “If it’s not criminal, certainly it ought to be,” he said.

Like any defendant, Blagojevich is entitled to have a jury decide whether it agrees with prosecutors about the “value” of the Tribune’s editorial stance. To convict, jurors would also have to find that the governor acted “corruptly” in making the proposal. Through his lawyer, Blagojevich has denied wrongdoing. “A lot of this is just politics,” the governor’s attorney, Sheldon Sorosky, said. The Tribune Co. issued a statement yesterday saying no one at the company tried to influence any internal staffing decisions.

Ultimately, any faults in the charge related to the Tribune could be immaterial, given the far more explosive and essentially separate charge that the senate seat being vacated by President-Elect Obama was being brazenly auctioned off by the Illinois governor. “This goes to an arrogance multiplied ten times over,” Toensing said. “I’m not a great fan of Fitzgerald, but this conduct seems be pretty out there, so whether he’s overreached on a count or two is not going to matter.”

In any event, it’s a tad humorous to see Fitzgerald riding to the Tribune’s rescue now after being faulted in at least two prior investigations for being inadequately sensitive to journalists’ concerns. Fitzgerald drew fire for seeking the jailing of a New York Times reporter, Judith Miller, in the CIA leak investigation which ultimately led to the conviction of Vice President Cheney’s chief of staff Lewis Libby. “I do not think that a reporter should be subpoenaed anything close to routinely. It should be an extraordinary case,” he said in 2005. In another less noticed case involving two Islamic charities with alleged ties to terrorist groups, Fitzgerald went after the phone records of Miller and another Times journalist, Philip Shenon. The prosecutor lost at the district court, but won at the 2nd Circuit. The Supreme Court refused to take the case.

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