Federal prosecutors should not retry Rod Blagojevich

Thursday, August 19, 2010

U.S. ATTORNEY Patrick J. Fitzgerald should back off his vow to retry former governor Rod Blagojevich (D-Ill.). With moral thunder in December 2008, the aggressive prosecutor declared that the state's chief executive was nabbed "in the middle of what we can only describe as a public corruption crime spree." Mr. Fitzgerald added, "The conduct would make Lincoln roll over in his grave." Yet on Tuesday, 20 months later, a federal jury was unmoved. In an extraordinary rebuke, Mr. Blagojevich was convicted on only one of 24 counts against him.

Mr. Fitzgerald brought unlimited resources and the power of the federal government to the case against Mr. Blagojevich. The charges included racketeering, bribery, conspiracy, extortion and making false statements. He was accused of exchanging state contracts for campaign donations. The most explosive accusation was that Mr. Blagojevich was trying to sell his ability to appoint someone to fill President Obama's former Senate seat. The charges against him were enough to get him impeached and removed from office in January 2009.

Still, despite having extensively taped the expletive-loving governor as he discussed ways to secure campaign cash, the government failed to convince a jury that Mr. Blagojevich had crossed the fuzzy line between sleazy politics and outright corruption. Some jurors noted that Mr. Blagojevich's ability to secure the contributions he talked about didn't match his grandiose scheming. There was unanimous agreement only on the charge of making false statements to the FBI. The jury believed that Mr. Blagojevich lied to the FBI when he said during a 2005 interview that he didn't keep track of campaign contributions and that he kept a "firewall" between campaigning and governing. Mr. Blagojevich, who plans to appeal this conviction, faces up to five years in prison and a $250,000 fine.

As for the other charges, as one juror told the New York Times, "We were all over the place." Much is being made of the 11-to-1 vote to convict Mr. Blagojevich on the Senate seat-selling charge. But for the prosecution, almost isn't good enough. Mr. Fitzgerald's team needed to convince the jury beyond a reasonable doubt. It didn't, and the federal judge declared a mistrial.

Mr. Fitzgerald is entitled under the law to drag the ex-governor back into court. He has the resources to do so and the motivation: The Blagojevich brand of politics is repugnant, beyond any doubt. It perverts democracy and puts moneyed interests over the common good. But the prosecutor took his shot and lost. He should stand down before crossing another fine line -- the one that separates prosecution from persecution.

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