Analysis: 7th Circuit Unanimously Rejects Some Charges Against IL Gov. Blagojevich

You can find the 23-page unanimous decision written by Judge Easterbrook at this link.

Given how short this opinion is, it is not clear why there was such a long delay in issuing this opinion.

Most of the charge were upheld, but the court found instructional error as to some of charges, particularly those related to a deal for political, as opposed to personal, deals for political favors.

What we have said so far requires the reversal of the convictions on Counts 5, 6, 21, 22, and 23, though the prosecutor is free to try again without reliance on Blagojevich’s quest for a position in the Cabinet. (The evidence that Blagojevich sought money in exchange for appointing Valerie Jarrett to the Senate is sufficient to convict, so there is no double‑jeopardy obstacle to retrial. See Burks v. United States, 437 U.S. 1 (1978).) Because many other convictions remain and the district judge imposed concurrent sentences, the prosecutor may think retrial unnecessary—but the judge may have considered the sought‑after Cabinet appointment in determining the length of the sentence, so we remand for re-sentencing across the board.

He remains in jail pending retrial:

The convictions on Counts 5, 6, 21, 22, and 23 are vacated; the remaining convictions are affirmed. The sentence is vacated, and the case is remanded for retrial on the vacated counts. Circuit Rule 36 will not apply. If the prosecutor elects to drop these charges, then the district court should proceed directly to resentencing. Because we have affirmed the convictions on most counts and concluded that the advisory sentencing range lies above 168 months, Blagojevich is not entitled to be released pending these further proceedings.

The legal issue on which the 7th Circuit reversed is a fascinating one, and it could provide the basis for Supreme Court review. However the federal government may not bother given that they won much of the case.

[This post has been updated.]

Share this: