The fine line between what is typical politics and what is criminal

The case of Rod Blagojevich is demonstrating what a fine line there is between the sort of political favors that happen every day in politics now and what is actually crime. Apparently, if favors are exchanged with a wink and a nod it's perfectly legal. What seems to make it illegal is being caught stating explicitly what is being traded for what.

“This town is full of people who call themselves ambassadors, and all they did was pay $200,000 or $300,000 to the Republican or Democratic Party,” said Mr. Bennett, referring to a passage in the criminal complaint filed against the governor suggesting that Mr. Blagojevich was interested in an ambassadorial appointment in return for the Senate seat. “You have to wonder, How much of this guy’s problem was his language, rather than what he really did?”

In presenting his case, Mr. Fitzgerald said Mr. Blagojevich had crossed the line from deal-making to criminality, citing an example in the complaint in which the governor discussed with an aide obtaining a $300,000-a-year job from the Service Employees International Union in return for naming a candidate to the seat.

“We’re not trying to criminalize people making political horse trades on policies or that sort of thing,” Mr. Fitzgerald said. “But it is criminal when people are doing it for their personal enrichment. And they’re doing it in a way that is, in this case, clearly criminal.”

But politicians routinely receive political contributions in return for their decisions, whether they involve making appointments or taking a stand on legislation. Lawmakers vote in favor of bills and steer appropriations backed by their donors without fear that prosecutors will bug their offices and homes.

And while prosecutors have brought increasing numbers of political corruption cases in recent years, they have done so using laws that make it a crime for an official to deprive the public of “honest services.” The cases are based on statutes that never define exactly what conduct might be illegal and do not require proof of a bribe or a quid pro quo to establish criminal wrongdoing.

What those statutes do require is evidence that an official at least tried to seek something of value in return for an official action.

In the case of Mr. Blagojevich, it would be legal for the governor to accept a campaign contribution from someone he appointed to the Senate seat. What would create legal problems for him is if he was tape-recorded specifically offering a seat in exchange for the contribution.

If Fitzgerald didn't have the tapes and if Blagojevich had given the Senate seat to one of the applicants and then later he'd received a job or a fundraiser was given for him by friends of the applicants, that would have been accepted as just politics as usual. He was just dumb enough to have discussed all this on the phone when he knew he was being investigated by a persistent prosecutor. But don't fool yourself. This sort of deal is done all the time by politicians who aren't quite as dumb and arrogant as the governor of Illinois.