While Rod Blagojevich's jury found him guilty on 17 felony counts last week, jurors found him not guilty on one count and deadlocked on two others. Not much has been written about those other counts, so let's take a look.
The paucity of electronic-surveillance evidence related to those verdicts, the lack of credible witnesses for the prosecution, and the absence of actual harm appeared to hurt the federal government's case.
Jurors deadlocked on whether Blagojevich actually attempted to hit up the brother of Rahm Emanuel for a big campaign contribution in exchange for releasing funds to a school in Emanuel's old congressional district. But this allegedly happened in 2006, long before the feds began bugging Blagojevich, so there were no tapes. And Emanuel - now Chicago's mayor - testified at trial that he'd never been told the grant would be made if his brother held a fundraiser. His testimony undermined the feds' case, and jurors deadlocked.
There was some surveillance involving the other two counts, which centered around whether Blagojevich tried to shake down a road-builder in exchange for giving him tollway contracts. But nothing concrete could be promised to the builder because a $6-billion tollway-construction plan that was constantly mentioned on tape was just a dream in Blagojevich's head at the time.
Blagojevich, in other words, was just dangling the possibility of government work in exchange for money from the road builder. But demanding a contribution from someone who does business with the government is not illegal under federal law.
The targeted road-builder testified that he felt pressured to contribute, but he initially told the FBI that there was no pressure. And the builder's bosses testified that Blagojevich never directly connected campaign contributions to contracts. Blagojevich was declared not guilty on one count, and the jury deadlocked on the other.
"No harm, no foul" may be a good way of summing this up. Emanuel's school got the cash, and no fundraiser was held. The road-builder was never promised or given anything specific, and no money was contributed.
Blagojevich was convicted of two other similar shakedown attempts. He was recorded being told that for every day he didn't sign a horse-racing-industry bailout bill, track owner John Johnston would lose $9,000. Real harm was being done. Blagojevich was also caught on tape instructing his aide how to approach Johnston and appeared to admit that he was holding off signing the bill until he got his money. He didn't sign the bill until after his arrest. There was nothing hypothetical about that charge and harm was done, and the former governor was found guilty.
The same reasoning goes for the shakedown of a Children's Memorial Hospital executive. Blagojevich was repeatedly caught on tape plotting to hit the exec up for a large contribution in exchange for releasing funding for the hospital. Blagojevich was also busted checking out whether he could hold up the money. And the exec credibly testified that he believed he was being shaken down. The state cash wasn't released until after Blagojevich was removed from office. Once again, real harm was done and there was plenty of recorded evidence and credible testimony to back up the government.
But if hypothetical situations and lack of actual harm undermined the government's case on three counts, why then did the jurors decide to back the prosecution's arguments all the way on the attempted sale of Barack Obama's U.S. Senate seat? After all, none of the schemes was ever followed that far. Nobody was really harmed by the delay, and much of what Blagojevich was caught on tape saying was obviously crazy talk.
Besides the audacity of Blagojevich's crassness, the answer may have been the huge amount of electronic surveillance. The jury was obviously impressed with the vast number of recordings involving the Senate scheme. "There was so much more evidence to go on," said one juror after the verdicts were issued.
And, unlike his last jury, which deadlocked on all but one charge, these jurors seemed to comprehend the fact that this wasn't about whether Blagojevich followed all the way through on his Senate schemes. "He was being tried on attempting, not committing a crime," a juror correctly explained to reporters.
Prosecutors also did a better job of explaining a much more streamlined case this time. The last jury got lost in a jumbled maze. But the feds used a PowerPoint presentation during summation that so impressed one juror that she said she wished the jury could've had it during deliberations.
Rich Miller also publishes Capitol Fax (a daily political newsletter) and CapitolFax.com.
