High-court ruling leaves Blagojevich on hook for bribery, kickbacks

A U.S. Supreme Court ruling issued Thursday sharply curtails the "honest services" statute, but defense attorneys for former Gov. Rod Blagojevich shouldn't be jumping up and down the decision just yet.

The decision, written by Justice Ruth Bader Ginsburg, found that the statute had been expanded too widely and was unnecessarily vague as it applied to the alleged malfeasance of former Enron executive Jeffrey Skilling and media magnate Conrad Black. Yet, it also affirmed that the original congressional statute, applying to "the intangible right of honest services," was intended "at least to reach schemes to defraud involving bribes and kickbacks."

That would certainly seem to apply to the charges made against Blagojevich, and the ruling offered little relief to his defense Thursday. His lawyers filed a motion to halt the testimony of former Blagojevich chief-of-staff John Harris and delay the trial until at least Tuesday to give them time to analyze the effects of the ruling, but U.S. District Judge James Zagel refused to delay Blagojevich's corruption trial.

Zagel said he had read the high-court opinion, which limits the use of a law that makes it illegal for public officials to deny taxpayers their right to the honest services of the officials, and told defense attorneys, "It may not offer a lot of hope for you."

Legal experts agreed, saying the high court's ruling left room to continue pursuing the 24 counts against Blagojevich.

"They limited it to bribery and kickback cases," said DePaul University law professor Leonard Cavise. "You should look at 'honest services' now as an alternative way of defining bribery and kickbacks. If somebody says, 'You better give me the money, or I'm going to tell this,' that's a direct bribe. But if somebody says, 'You better give me the money, and you just better give me the money,' that's being dishonest."

Former Blagojevich chief of staff and fundraiser Alonzo Monk testified he told racetrack owner John Johnston almost exactly that in hitting him up for a campaign contribution while favorable racing legislation was sitting on the desk of the then-governor in 2008. Blagojevich has been charged with taking part in and having knowledge of those and other bribery and kickback schemes.

"I don't think it will have an impact on Blagojevich anyway," said Chicago-Kent College of Law attorney and professor Richard Kling. "Realistically, the government went in anticipating there was a possibility it would be knocked out. Whether the judge at the appropriate time determines it still exists or doesn't exist remains to be seen.

"In criminal trials, it's not unusual in the middle of trials at the close of the government's case for some of the counts to get dismissed anyway," he added. "You go on with the case and the jury still (determines) at the end of the case what they're responsible for deciding."

Kling pointed to how everyone was well aware the "honest services" statute was in flux and under consideration by the Supreme Court, resulting in the government's superseding indictment filed earlier this year shifting the charges against Blagojevich to racketeering, bribery and extortion and away from "honest services" fraud, although it was still mentioned and still figures to be in play unless Zagel decides otherwise.

The defense "will make motions to dismiss those counts based on the Supreme Court ruling," Kling predicted. "What I would expect Judge Zagel to do is he's going to say, 'I need to read the entire decision. Let me think about it. We'll look at it at the conclusion of the government's case.'"

The "honest services" ruling could have more effect on the case of Blagojevich's predecessor as Illinois governor, George Ryan, who was also convicted in part on the statute. "The decision is pretty important for former governor Ryan," said Barrington Hills attorney Andrew Stoltmann, who has been following the Blagojevich trial and blogging about it. "But he was convicted on 18 different counts. I think he likely will get some time shaved off his sentence, but I do not think he will be going home any time soon."