Holiday Sale: An Open Senate Seat From Illinois.

A portion of the criminal complaint against Illinois Governor Rod Blagojevich is on Smoking Gun.

I’ve never met Blagojevich, but I once met the man who made him Governor, David Axelrod. In the primaries, Blagojevich beat a good man (whom I was favoring), Chicago Public Schools Superintendent Paul Vallas. Vallas had done a terrific job improving Chicago schools, while fighting some of the very different school reforms of the three foundations on which Bill Ayers and Barack Obama worked together. But, as we’ve seen in the last year, Axelrod is a master campaign manager and Blagojevich ran on a platform of change – more particularly, ending “pay to play.”

Not only does the complaint refrain from making allegations of wrongdoing by Obama and the Obama transition team, at one point Blagojevich is recorded expressing frustration with the idea that Obama might expect his Senate candidate to be appointed without giving anything in return except gratitude.

The most interesting of the allegations involves SEIU, the ACORN-related union that has been close to Obama for many years. It appears that SEIU might have been pushing for the Senate slot the candidate whom Obama was thought to support. The complaint does not identify that candidate, though she is described as female and an Obama aide. My guess from clues is that she is Valerie Jarrett, who may have pulled out from consideration.

Eventually, Blagojevich was angling for one of two possibilities:

1. Obama to set up a $10 to $20 million non-profit organization for Blagojevich to run after he left office, perhaps with money from Warren Buffet or Bill Gates.

2. A three-way deal in which Blagojevich appoints Obama’s choice as Senator and SEIU hires Blagojevich’s wife for its Change to Win organization, and then hires Blagojevich to run Change to Win when he leaves office for several hundred thousand dollars a year.

The complaint alleges that Blagojevich did meet with SEIU about the Senate seat, but it's unclear whether any corrupt deal was discussed with SEIU.

Comments

SEIU ties in the Gov. BLAGOJEVICH Complaint.

I've been trying to sort out in my mind what SEIU's involvement might be. Here are the main SEIU-related allegations of facts supporting the government's complaint:

109. On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C.

Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat.

During the conversation with SEIU Official on November 12, 2008, ROD BLAGOJEVICH informed SEIU Official that he had heard the President-elect wanted persons other than Senate Candidate 1 to be considered for the Senate seat.

SEIU Official stated that he would find out if Senate Candidate 1 wanted SEIU Official to keep pushing her for Senator with ROD BLAGOJEVICH. ROD BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization. ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

110. On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B.

ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.”

Comments

Government Attempt to Get Newspaper Editorial Board Members Fired:

From the government's criminal complaint against Gov. Blagojevich (some paragraph breaks added):

13.... b. Defendants Rod Blagojevich and John Harris, together with others, offered to, and threatened to withhold from, the Tribune Company substantial state financial assistance in connection with Wrigley Field, which assistance Rod Blagojevich believed to be worth at least $100 million to the Tribune Company, for the private purpose of inducing the controlling shareholder of the Tribune Company to fire members of the editorial board of the Chicago Tribune, a newspaper owned by the Tribune Company, who were responsible for editorials critical of Rod Blagojevich ....

69. Intercepted phone calls reflect that Rod Blagojevich and John Harris, together with others, are corruptly using and threatening to use the powers of Rod Blagojevich’s office as Governor of the State of Illinois to exert financial pressure on the owners of the Tribune Company, the parent corporation of the Chicago Tribune newspaper, to fire Chicago Tribune editorial board members who were responsible for editorials sharply critical of Rod Blagojevich’s actions as Governor and, among other things, calling for his impeachment.....

72. On the evening of November 3, 2008, Rod Blagojevich talked to Deputy Governor A. Rod Blagojevich stated that he was concerned about possibly being impeached in the Spring and that the Chicago Tribune will be “driving” the impeachment discussion. Rod Blagojevich asked Deputy Governor A to check to see if the Tribune has recently “advocate[d]” that he be impeached. In fact, the Chicago Tribune recently had published editorials critical of Rod Blagojevich.

73. In another call between Rod Blagojevich and Deputy Governor A that occurred a short time later on November 3, 2008, Rod Blagojevich and Deputy Governor A discussed an editorial from the Chicago Tribune regarding the endorsement of Michael Madigan and calling for a committee to consider impeaching Rod Blagojevich. During the call, Rod Blagojevich’s wife can be heard in the background telling Rod Blagojevich to tell Deputy Governor A “to hold up that fucking Cubs shit... fuck them.” Rod Blagojevich asked Deputy Governor A what he thinks of his wife’s idea. Deputy Governor A stated that there is a part of what Rod Blagojevich’s wife said that he “agree[s] with.” Deputy Governor A told Rod Blagojevich that Tribune Owner will say that he does not have anything to do with the editorials, “but I would tell him, look, if you want to get your Cubs thing done get rid of this Tribune.”

Later, Rod Blagojevich’s wife got on the phone and, during the continuing discussion of the critical Tribune editorials, stated that Tribune Owner can “just fire” the writers because Tribune Owner owns the Tribune. Rod Blagojevich’s wife stated that if Tribune Owner’s papers were hurting his business, Tribune Owner would do something about the editorial board. Rod Blagojevich then got back on the phone. Rod Blagojevich told Deputy Governor A to put together the articles in the Tribune that are on the topic of removing Rod Blagojevich from office and they will then have someone, like John Harris, go to Tribune Owner and say, “We’ve got some decisions to make now.”

Rod Blagojevich said that “someone should say, ‘get rid of those people.’” Rod Blagojevich said that he thinks that they should put this all together and then have Harris or somebody go talk to the Tribune owners and say, “Look, we’ve got decisions to make now ... moving this stuff forward (believed to be a reference to the IFA helping with the Cubs sale) ... someone’s gotta go to [Tribune Owner], we want to see him ... it’s a political fuckin’ operation in there.” Deputy Governor A agreed and said that Harris needs to be “sensitive” about how he does it.

Rod Blagojevich said there is nothing sensitive about how you do it and that it’s “straight forward” and you say “we’re doing this stuff for you, we believe this is right for Illinois [and] this is a big deal to [Tribune Owner] financially” but what Rod Blagojevich is doing to help Tribune Owner is the same type of action that the Tribune is saying should be the basis for Rod Blagojevich’s impeachment. Rod Blagojevich said Tribune Owner should be told “maybe we can’t do this now. Fire those fuckers.”

Deputy Governor A suggested that Rod Blagojevich say, “I’m not sure that we can do this anymore because we’ve been getting a ton of these editorials that say, look, we’re going around the legislature, we gotta stop and this is something the legislature hasn’t approved. We don’t want to go around the legislature anymore.” Rod Blagojevich agreed and said that he wants Harris to go in and make that case, “not me.” Deputy Governor A agreed and said that he likes it. Rod Blagojevich asked Deputy Governor A to put the list of Tribune articles together....

76.... Rod Blagojevich stated that “our recommendation is fire all those fucking people, get ‘em the fuck out of there and get us some editorial support.”

There’s a good deal more factual detail in the complaint — have a look if you're interested. Thanks to Sean Parnell of the Center for Competitive Politics for the pointer.

Comments

It appears that Obama Camp was not willing to cut a deal with Blagojevich.

Here are the government allegations that reference Blagojevich’s frustration with the Obama Camp's apparent unwillingness to pay Blagojevich for appointing Obama’s presumed favorite as Senator.

101. c. ROD BLAGOJEVICH said that the consultants (Advisor B and another consultant are believed to be on the call at that time) are telling him that he has to “suck it up” for two years and do nothing and give this “motherf**ker [the President-elect] his senator. F**k him. For nothing? F**k him.”

ROD BLAGOJEVICH states that he will put “[Senate Candidate 4]” in the Senate “before I just give f**king [Senate Candidate 1] a f**king Senate seat and I don’t get anything.” (Senate Candidate 4 is a Deputy Governor of the State of Illinois). ROD BLAGOJEVICH stated that he needs to find a way to take the “financial stress” off of his family and that his wife is as qualified or more qualified than another specifically named individual to sit on corporate boards.

According to ROD BLAGOJEVICH, “the immediate challenge [is] how do we take some of the financial pressure off of our family.” Later in the phone call, ROD BLAGOJEVICH stated that absent getting something back, ROD BLAGOJEVICH will not pick Senate Candidate 1.

HARRIS re-stated ROD BLAGOJEVICH’s thoughts that they should ask the President-elect for something for ROD BLAGOJEVICH’s financial security as well as maintain his political viability.

HARRIS said they could work out a three-way deal with SEIU and the President-elect where SEIU could help the President-elect with ROD BLAGOJEVICH’s appointment of Senate Candidate 1 to the vacant Senate seat, ROD BLAGOJEVICH would obtain a position as the National Director of the Change to Win campaign, and SEIU would get something favorable from the President-elect in the future.

d. One of ROD BLAGOJEVICH’s advisors said he likes the idea, it sounds like a good idea, but advised ROD BLAGOJEVICH to be leery of promises for something two years from now. ROD BLAGOJEVICH’s wife said they would take the job now. Thereafter, ROD BLAGOJEVICH and others on the phone call discussed various ways ROD BLAGOJEVICH can “monetize” the relationships he is making as Governor to make money after ROD BLAGOJEVICH is no longer Governor.

102. Later on November 10, 2008, ROD BLAGOJEVICH and Advisor A discussed the open Senate seat. Among other things, ROD BLAGOJEVICH raised the issue of whether the President-elect could help get ROD BLAGOJEVICH’s wife on “paid corporate boards right now.” Advisor A responded that he “think[s] they could” and that a “President-elect . . . can do almost anything he sets his mind to.”

ROD BLAGOJEVICH states that he will appoint “[Senate Candidate 1 [[Obama’s presumed favorite]]] . . . but if they feel like they can do this and not f**king give me anything . . . then I’ll f**king go [Senate Candidate 5].” (Senate Candidate 5 is publicly reported to be interested in the open Senate seat). ROD BLAGOJEVICH stated that if his wife could get on some corporate boards and “picks up another 150 grand a year or whatever” it would help ROD BLAGOJEVICH get through the next several years as Governor. . . .

104. On November 11, 2008, ROD BLAGOJEVICH talked with JOHN HARRIS about the Senate seat. ROD BLAGOJEVICH suggested starting a 501(c)(4) organization (a non-profit organization that may engage in political activity and lobbying) and getting “his (believed to be the President-elect’s) friend Warren Buffett or some of those guys to help us on something like that.”

HARRIS asked, “what, for you?” ROD BLAGOJEVICH replied, “yeah.”

Later in the conversation, ROD BLAGOJEVICH stated that if he appoints Senate Candidate 4 to the Senate seat and, thereafter, it appears that ROD BLAGOJEVICH might get impeached, he could “count on [Senate Candidate 4], if things got hot, to give [the Senate seat] up and let me parachute over there.” HARRIS said, “you can count on [Senate Candidate 4] to do that.”

Later in the conversation, ROD BLAGOJEVICH said he knows that the President-elect wants Senate Candidate 1 for the Senate seat but “they’re not willing to give me anything except appreciation. F**k them.”

UPDATE: If true, these allegations hint that Obama or his transition team were victims of an extortion/bribery attempt.

Comments

Is It a Crime To Trade a Senatorial Appointment Decision for a Cabinet Job?

The charges against Illinois Governor Rod Blagojevich are extremely serious, and much of them allege garden variety corruption, albeit on a massive scale. But I wonder whether one of the items should indeed form the basis for a corruption prosecution:

Rod Blagojevich has been intercepted conspiring to trade [his decision to appoint someone to] the senate seat [vacated by the President-elect] for particular positions that the President-elect has the power to appoint (e.g. the Secretary of Health and Human Services).

It's true that a cabinet position has a salary attached to it, which I believe is somewhat larger than that of the Governor of Illinois. And I agree that trading a decision to appoint someone a Senator for a pot of money is classic criminal bribery.

But my sense is that political deals of the "I appoint your political ally to X and you appoint me to Y" variety are pretty commonplace, though perhaps done with more subtlety than seemed to be contemplated here. Should these deals indeed be treated as criminal bribery? Have they generally been so treated? What if the deal didn't involve appointment-for-appointment swaps but vote-for-vote swaps or vote-for-appointment swaps — e.g., "if you vote the way I want you to vote, I'll vote the way you want me to vote" or "if you vote the way I want you to vote, I, the Speaker of the House, will make sure that you're appointed to the committee chairmanship you always wanted" or "if you solidly support me during this Congress, I'll appoint you to the Cabinet"?

Here this proposed deal seems part of a broader pattern of corruption (though this also means that the prosecution would likely do just fine if they had excluded the deal, and focused on the prospect of trading the appointment for a private-sector position). But the government's theory, I take it, would apparently treat such a deal as a federal crime — assuming the federal jurisdictional requirements are met — even if it were a standalone deal by an otherwise uncorrupt official. So that, I think, makes it worth considering how the law should treat these sorts of deals involving political appointments.

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Who are the unnamed players in the Blagojevich case?

Speculation is rampant in Illinois and in the blogosphere over the identity of the unnamed characters in the affidavit supporting the complaint.

1. Advisor A and Advisor B

Some have wondered whether David Axelrod is Advisor A or Advisor B. This strikes me as highly unlikely.

Advisor A is described in the affidavit supporting the complaint as “a former Deputy Governor under ROD BLAGOJEVICH who is currently a lobbyist.”

Advisor B is described as “a Washington D.C.-based consultant.”

David Axelrod was never “a former Deputy Governor” and he is a consultant based in Chicago, not DC.

2. Senate Candidate 1

Identified as female and described as “an advisor to the President-elect,” she is very probably Valerie Jarrett, as I noted in an earlier post.

3. Senate Candidate 2

Senate Candidate 2 is Lisa Madigan, the state attorney general.

The Allegations:

97. On November 6, 2008, ROD BLAGOJEVICH talked with Spokesman. ROD BLAGOJEVICH told Spokesman to leak to a particular columnist for the Chicago Sun-Times, that Senate Candidate 2 is in the running for the vacant Senate seat. According to ROD BLAGOJEVICH, by doing this, he wanted “to send a message to the [President-elect’s] people,” but did not want it known that the message was from ROD BLAGOJEVICH.

Thereafter, ROD BLAGOJEVICH and Spokesman discussed specific language that should be used in the Sun Times column and arguments as to why Senate Candidate 2 made sense for the vacant Senate seat. A review of this particular Sun Times column on November 7, 2008, indicates references to the specific language and arguments regarding Senate Candidate 2 as a potential candidate for the Senate seat, as discussed by ROD BLAGOJEVICH and Spokesman.

Here is part of the Michael Sneed Sun-Times column referred to in the allegations:

The latest from Blagoville: Is Gov. Rod Blagojevich toying with tossing Barack Obama's U.S. Senate seat to Illinois Attorney General Lisa Madigan, who wants Blago's job?

Putting these two together, Madigan's identity is a near certainty.

4. Senate Candidate 3

JTA, a Jewish news service, claims (with no supporting facts at all) that Senate Candidate 3 is US Rep. Jan Schakowsky.

JTA has learned that Schakowsky, the only Jewish contender to replace Obama, is the "Senate Candidate 3" in the prosecution complaint.

5. Senate Candidate 4

The Affidavit states that “Senate Candidate 4 is a Deputy Governor of the State of Illinois.” That would mean one of the following: Dean Martinez, Bob Greenlee, or Louanner Peters. Arch Pundit speculates that Senate Candidate 4 is Louanner Peters, but gives no reasons for her over the other two.

6. Senate Candidate 5

Although some have suggested that Senate Candidate 5 is Jesse Jackson, Jr., the likelier guess is Emil Jones, Obama’s “political godfather” and former mentor in the Illinois Senate. More on that later.

7. Senate Candidate 6

The Affidavit states that, “Senate Candidate 6, based on other intercepted conversations, is believed to be a wealthy person from Illinois.”

On Nov. 26, 2008, Michael Sneed’s column ran this item:

HMMM . . .

The name of wealthy businessman J.B. Pritzker, a big supporter of U.S. Sen. Hillary Clinton's presidential bid, seems to be bubbling up more frequently to the top of Gov. Blagojevich's short list to fill President-elect Barack Obama's Senate seat.

A Nov. 10, 2008 Sun-times editorial mentions two wealthy possibilities: J.B. Pritzker and Edwin Eisendrath.

8. President-elect Advisor

There is speculation that the "President-elect Advisor" is Rahm Emanuel. More on that later.

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The Blagojevich Timeline: Everything Fits Easily Except Obama's Monday Denial.

Most people have misunderstood the timeline of the Blagojevich Senate scandal. Pretty much everything fits except Barack Obama's statement yesterday that he knew nothing about it.

If we didn't have Obama's denial to contend with, the actions of all the parties, including those purporting to speak for Obama, are consistent with Obama and his staff learning about Blagojevich's corrupt plans on Monday, Nov. 10.

Consider the timeline, as revealed in the complaint and press reports:

1. On the weekend of Nov. 8-9, Obama lets it be known that his choice for Senate is Valerie Jarrett. Aides tell WLS-TV in Chicago and CNN, which announces Obama’s choice on Sunday. Nov. 9.

2. On Monday, Nov. 10, Blagojevich holds an incredible 2-hour conference call with multiple consultants: “ROD BLAGOJEVICH, his wife, JOHN HARRIS, Governor General Counsel, and various Washington-D.C. based advisors, including Advisor B,” discussing his corrupt schemes. He follows this with two calls with Advisor A.

3. That very night, Monday, Nov. 10, at 7:56pm, CNN reported:

Two Democratic sources close to President-elect Barack Obama tell CNN that top adviser Valerie Jarrett will not be appointed to replace him in the U.S. Senate.

"While he (Obama) thinks she would be a good senator, he wants her in the White House," one top Obama advisor told CNN Monday.

Over the weekend, Democratic sources had told CNN as well as Chicago television station WLS-TV that Jarrett was Obama's choice to fill his Senate seat.

So what happened? The likeliest scenario is that one of the many participants in Blagojevich’s Monday phone calls either floated his plans to the Obama transition team to assess their response or tipped off the Obama camp about the reckless ideas that Blagojevich had planned.

In any event, within hours of Blagojevich substantially expanding his circle of confidants, the Obama camp withdrew Jarrett’s name from consideration and attributed that withdrawal to the President's wanting Jarrett in the White House. And the Obama staffers went out of their way to depict this as Obama's choice, rather than Jarrett's, which would have been more common. The report claims Obama's involvement in the decision and suggests a direct effort to undercut the idea that Obama was pressuring Blagojevich to appoint Jarrett.

4. Moreover, by the next day, Tuesday, Nov. 11, Blagojevich already had received his answer from the Obama camp that no quid pro quo would be forthcoming: “ROD BLAGOJEVICH said he knows that the President-elect wants Senate Candidate 1 for the Senate seat but ‘they’re not willing to give me anything except appreciation. F**k them.’”

5. On Wednesday, Nov. 12, Blagojevich pitched his corrupt bargain idea to an SEIU Official who, according to Ben Smith, is President Andy Stern. [On Dec. 11, the New York Times identified the official as Tom Balanoff, head of Illinois' largest union and Obama's biggest union supporter. The SEIU official] agreed to convey the offer to the relevant actors. Blagojevich understood [the SEIU official] to be contacting Jarrett herself, the co-chairwoman of the Obama transition team:

109. On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C. Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat.

During the conversation with SEIU Official on November 12, 2008, ROD BLAGOJEVICH informed SEIU Official that he had heard the President-elect wanted persons other than Senate Candidate 1 to be considered for the Senate seat.

SEIU Official stated that he would find out if Senate Candidate 1 wanted SEIU Official to keep pushing her for Senator with ROD BLAGOJEVICH. ROD BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization.

ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

110. On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B. ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.”

6. The complaint doesn’t say whether [the SEIU official] contacted Jarrett or other members of the Obama transition team, but it is likely that he did. [On Dec. 11, the New York Times reported that Balanoff did ferry messages from the Blagojevich camp to the Obama camp.] Whether [the SEIU official] was horrified by Blagojevich’s corrupt idea and wanted to warn Obama or intrigued by the deal and wanted to assess its chances, I can’t think of a good reason why [the SEIU official] wouldn’t have conveyed the idea to the Obama camp.

7. On Thursday, Nov. 13:

ROD BLAGOJEVICH asked Advisor A to call Individual A and have Individual A pitch the idea of the 501(c)(4) to “[President-elect Advisor].” Advisor A said that, “while it’s not said this is a play to put in play other things.” ROD BLAGOJEVICH responded, “correct.” Advisor A asked if this is “because we think there’s still some life in [Senate Candidate 1] potentially?” ROD BLAGOJEVICH said, “not so much her, but possibly her. But others.”

8. If, as seems likely, Individual A then pitched Blagojevich’s corrupt bargain to the “President-elect Advisor” and that advisor is Rahm Emanuel, as has been suggested by others, then Emanuel would then have known of the bribery attempt.

9. By 6:10pm on Friday, Nov. 14, CNN is reporting:

Valerie Jarrett tells CNN contributor Roland Martin that President-elect Barack Obama offered and she accepted a position in the Obama administration – she will be the Senior Adviser to the President and Assistant to the President for Intergovernmental Affairs and Public Liaison.

10. Nov. 14 to early December: After occasionally feeding speculation about who might fill Obama’s seat, the Obama transition team suddenly goes remarkably silent about his preference.

11. On Nov. 23, Obama’s “senior adviser David Axelrod appeared on Fox News Chicago,” answering a question about the Senate seat.

While insisting that the President-elect had not expressed a favorite to replace him, and his inclination was to avoid being a "kingmaker," Axelrod said, "I know he's talked to the governor and there are a whole range of names many of which have surfaced, and I think he has a fondness for a lot of them."

Note the language used. While on Nov. 9, Obama staffers were telling multiple news outlets whom Obama wanted for his Senate seat, by Nov. 23, Axelrod was distancing Obama not only from any individual choice, but he used the pejorative term “kingmaker” to emphasize Obama’s avoidance of any even marginally corrupt influence. It is likely that Axelrod had in mind the corrupt bargain that Obama’s camp had already turned down.

12. On Tuesday, Dec. 9, Obama denies personal knowledge of the corrupt proposal.

"I had no contact with the governor or his office and so we were not, I was not aware of what was happening."

As I’ve said before, as with Bill Clinton, Barack Obama’s words should be read carefully to see what he is saying and not saying. Apparently, Obama started to say that “we were not” “aware of what was happening," but corrected himself by saying that “I was not aware of what was happening."

That language leaves open the possibility that his staff was aware, but he personally was not. But why would Obama’s staff withhold information from him? I assume that Obama is telling the truth about not having spoken to the governor himself, since that might be easily refuted.

CONCLUSION:

From the evening of Nov. 10 until yesterday, Blagojevich, Obama, and his transition team acted in ways that are consistent with a knowledge of Blagojevich’s bribery attempt and a rejection of that attempt. What doesn't fit easily with the timeline is Obama's statement yesterday.

It should be noted that it is not a crime to fail to report a bribery attempt. The federal misprision of felony statute would seem to make it a federal crime to fail to report a federal felony:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. 18 USC s.4.

But case law has conclusively determined that mere non-reporting is not enough. Active concealment or the acceptance of a benefit for concealing is required.

Yet, looking at this timeline of Blagogate, it seems quite possible that someone in the Obama Camp is either lying or at least not revealing what they know. I also find it hard to believe that Obama’s closest advisors were hiding major corruption from him, especially as he was making decisions about where to place Senate candidates such as Jarrett.

Something important is missing from this story. Let's hope that, whatever it is, the absent fact or explanation will allow the narrative to fit Obama's denial more naturally.

Since by all accounts, the Obama camp refused Blagojevich’s bribery attempt, it would be extremely unwise to lie about it. Remember, it’s not the crime that trips you up; it’s the cover-up.

UPDATE: My parsing of Obama's statement above gets some strong support from this LA Times interview, noted by Byron York:

It hasn't gotten a huge amount of coverage, but Obama did an interview with the Los Angeles Times yesterday. He said he had never talked about the Senate seat with Rod Blagojevich. But when he was asked whether his staff had, he clammed up. From the interview:

Q: Have you ever spoken to [Illinois] Gov. [Rod R.] Blagojevich about the Senate seat?

Obama: I have not discussed the Senate seat with the governor at any time. My strong belief is that it needed to be filled by somebody who is going to represent the people of Illinois and fight for them. And beyond that, I was focused on the transition.

Q: And that was before and after the election?

Obama: Yes.

Q: Are you aware of any conversations between Blagojevich or [chief of staff] John Harris and any of your top aides, including Rahm [Emanuel]?

Obama: Let me stop you there because . . . it's an ongoing.... investigation. I think it would be inappropriate for me to, you know, remark on the situation beyond the facts that I know. And that's the fact that I didn't discuss this issue with the governor at all.

So I was correct that Obama was indeed drawing a distinction between what he knew and what his staff might have known.

As I said above, there is something missing here. It wouldn't surprise me if Obama staffers were working with the prosecutors (from the week of Nov. 10th on), a possibility suggested in comments below. But it would surprise me if Obama staffers went to the feds without telling Obama.

2d UPDATE: I see that the Wall Street Journal's Washington Wire ("Blagojevich’s Big Conference Call and Valerie Jarrett’s Clean Break") adopts my analysis (without linking me). In particular, they accept my narrative and dating of the break in the case as happening on Nov. 10, not Nov. 12, as was the consensus before I wrote this post.

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Sources Tell ABC that Senate Candidate 5 is Jesse Jackson, Jr.

ABC is reporting that its sources say that Senate Candidate 5 is Jesse Jackson, Jr., not Emil Jones (tip to Powerline).

Senate Candidate 5 is the only one whose supporters come off badly in the government's complaint, though of course the complaint reflects things from Blagojevich's point of view.

Comments

Nov. 5 news story reports that Obama was to meet with Blagojevich that day to discuss Senate replacement.

From Katie Granju's comments and Instapundit comes a link to this Nov. 5 news story, reporting that "[Obama]'s meeting with Governor Rod Blagojevich this afternoon in Chicago to discuss" his Senate replacement.

If Obama is telling the truth, then this Nov. 5 story is wrong:

Who will fill Obama's senate seat?: Ill. governor meeting with Obama today

By Carol Sowers

Wednesday, November 05, 2008 at 10:39 a.m.

CHICAGO, ILL. — Now that Barack Obama will be moving to the White House, his seat in the U.S. Senate representing Illinois will have to be filled.

That's one of Obama's first priorities today.

He's meeting with Governor Rod Blagojevich this afternoon in Chicago to discuss it.

Illinois law states that the governor chooses that replacement. . . .

It's likely the governor will make his decision quickly so the new senator will get some seniority before newly-elected senators take office in January.

Part of the timing depends on when Obama officially vacates his senate seat.

UPDATE: In a quick Westlaw review of news stories, I can't find any support for the Nov. 5 news story quoted above. Indeed, on Nov. 5 Blagojevich held a news conference at which he said that he had not yet talked with Obama. Here is the AP version:

Blagojevich said some candidates reached out to him before the election and his administration would seek out others who could be a good choice. He also wants Obama's input.

"That would have obviously a great deal of weight on the decision that I would make," Blagojevich said.

He said he has not yet spoken to Obama, whose timeline for resigning his Senate seat was unclear Wednesday.

If Blagojevich were meeting with Obama a few hours after his news conference on Nov. 5, it would have been odd not to mention it, or at least hint in that direction.

My tentative conclusion is the same as I expressed yesterday (and hinted above): Obama is telling the truth when he says that he has not talked to Blagojevich about his Senate seat, but he is not ruling out staff discussions.

2d UPDATE: Ed Morrissey has more.

3d UPDATE: TV station KHQA has issued this release:

KHQA TV wishes to offer clarification regarding a story that appeared last month on our website ConnectTristates.com. The story, which discussed the appointment of a replacement for President Elect Obama in the U.S. Senate, became the subject of much discussion on talk radio and on blog sites Wednesday.

The story housed in our website archive was on the morning of November 5, 2008. It suggested that a meeting was scheduled later that day between President Elect Obama and Illinois Governor Blagojevich. KHQA has no knowledge that any meeting ever took place. Governor Blagojevich did appear at a news conference in Chicago on that date.

This statement doesn't say why they thought there would be a meeting or whether a meeting was scheduled for that day.

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It depends on what the meaning of the word "Contact" is.

Obama claimed Tuesday:

“I had no contact with the governor or his office and, so we were not – I was not aware of what was happening," Obama said.

Now Politico reports that he did have contact [though, to be clear to those who might not read the rest of the post, I do not think that this contact indicates that Obama discussed the Senate seat directly with Blagojevich]:

Obama and Blagojevich both attended the National Governors Association meeting last week in Philadelphia and were photographed shaking hands at the event.

Before the meeting, Blagojevich was quoted saying he had asked Obama’s transition team for federal stimulus aid of $3 billion over the next three years to help fill Illinois’ estimated $2 billion deficit.

Blagojevich and Obama not having contact in Philadelphia

Apparently, “contact” does not include a private meeting with governors in Philadelphia, or a public shaking of hands in front of the cameras.

It is not really plausible that Obama was interested in who was replacing him in the Senate, and that Blagojevich was desperately interested in shaking down Obama for money or favors, and that Obama’s refusal to yield to Blagojevich’s bribery/extortion attempt was conveyed to Blagojevich — but somehow in over a month there was no contact between the Obama camp and the Governor’s team.

All this leads me to wonder if Obama is becoming like Clinton?

When Obama says that “I had no contact,” does he mean that I DID have contact, but it was indirect so I don't have to admit it to you?

And when Obama says that “I was not aware of what was happening,” does he mean that I WAS aware of what was happening, but not to a level of certainty that I could be meet a legal “knowledge” standard beyond a reasonable doubt? (see DRJ at Patterico on this point)

And when Obama says that “I had no contact with the governor or his office and . . . I was not aware of what was happening,” does he mean that my staff DID have contact with the governor or his office and they WERE aware of what was happening?

As with Clinton, should we presume that Obama is saying something that is technically not a lie, but that the full truth is closer to the opposite of what he is trying to make us think?

I suppose "It depends on what the meaning of the word [‘contact’] is” and “what the meaning of the word [‘aware’] is.”

UPDATE: Orin disagrees with this post, but I think he misunderstands what I am saying.

After playfully showing the picture of Obama and Blagojevich shaking hands, I do not treat that trivial contact as dispositive on the issue of contact for the very reasons that Orin points to: It all depends on what the meaning of "contact" is, which, after all, is the title of my post.

That is merely the setup for the main point of the post, which is clearly stated:

It is not really plausible that Obama was interested in who was replacing him in the Senate, and that Blagojevich was desperately interested in shaking down Obama for money or favors, and that Obama’s refusal to yield to Blagojevich’s bribery/extortion attempt was conveyed to Blagojevich — but somehow in over a month there was no contact between the Obama camp and the Governor’s team.

If I thought that shaking hands were dispositive on contact, I wouldn't have to make this larger argument. Further, I go on to make it explicit that I think it likely that Obama is not lying because probably only indirect contacts were made between Obama and Blagojevich on the Senate seat.

Also, I have twice posted that I don't believe that Obama talked directly with Blagojevich about the Senate seat, a position I still hold:

My tentative conclusion is the same as I expressed yesterday (and hinted above): Obama is telling the truth when he says that he has not talked to Blagojevich about his Senate seat, but he is not ruling out staff discussions.

My post on the timeline, which is evolving into the conventional understanding of what happened when, points to many clues that indirect contacts were made between Obama and Blagojevich.

So I don't disagree with most of what Orin says except his misreading of what I'm arguing. I neither say, nor think, that meeting with governors indicates that Obama and Blagojevich talked directly about the Illinois Senate seat.

2d UPDATE, Thursday morning: Barack Obama just reiterated that he had not spoken to Blagojevich about the Senate seat and promised over the next few days to have his staff disclose any contacts between his camp and Blagojevich. Though Obama didn't admit indirect contacts yet, he implied that there were some, so we might know in a few days whether my characterization was correct. If the implications of Obama's statement today are borne out, then my characterization above will also be borne out.

BTW, Obama looks relaxed and in control -- excellent affect.

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Illinois Attorney General's Petition to Have Governor Removed:

I haven't gotten a copy of the petition; if you can point me to one, please e-mail me at volokh at law.ucla.edu. In the meantime, here's the provision of the Illinois Constitution that seems to be in play:

SECTION 6. GUBERNATORIAL SUCCESSION

(a) In the event of a vacancy, the order of succession to the office of Governor or to the position of Acting Governor shall be the Lieutenant Governor, the elected Attorney General, the elected Secretary of State, and then as provided by law.

(b) If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.

(c) Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.

(d) The General Assembly by law shall specify by whom and by what procedures the ability of the Governor to serve or to resume office may be questioned and determined. The Supreme Court shall have original and exclusive jurisdiction to review such a law and any such determination and, in the absence of such a law, shall make the determination under such rules as it may adopt.

The last sentence seems most relevant; I know of no Illinois statute on the subject, so Supreme Court Rule 382 appears to be relevant. But neither the Constitution nor the Rule clarify what constitutes a "disability," and whether the Governor's being prosecuted (but being out on bail) qualifies.

The Capitol Fax Blog has more, but not much more. The National Center for State Courts has a Backgrounder on Gubernatorial Removal and the State High Courts, but that's a national perspective, with little details about this particular item. The Backgrounder also points to In re O'Bannon (2003), in which the Indiana Supreme Court declared Gov. O'Bannon disabled, but that involved a clear disability — a coma following a stroke.

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More on the Illinois Attorney General's Asking the Illinois Supreme Court to Remove Gov. Blagojevich:

Here's the brief laying out the Attorney General's arguments and the motion for temporary relief pending a final decision, asking the court to "temporarily and preliminarily enjoin[ Mr. Blagojevich] from acting as Governor." Note that Abner Mikva — a former Congressman, D.C. Circuit Judge, and Clinton White House Counsel, as well as an advisor of President-Elect Obama's — is on the brief.

Mikva was also a monitor in the 2004 Ukrainian elections, which reminds me of a joke I had heard in the 1990s.

Thanks to Keith Blackwell for the pointer.

UPDATE: Here's the heart of the AG's argument about why Gov. Blagojevich should be removed for "disability" (the legal test) (PDF p. 15):

The pervasive nature, volume, and severity of the illegal acts charged in the complaint indicate that Mr. Blagojevich is unable to distinguish between his financial interests and his official duties and between illegal acts and legal conduct, rendering him incapable of legitimately exercising his authority as Governor. The nature and volume of those acts clearly evidence a disability that has rendered Mr. Blagojevich unable to serve. As a result of the federal complaint relating to his official acts, Mr. Blagojevich's future official acts -- many of which are the subject of the federal complaint -- will be subject to challenge as illegal or improperly motivated. Because the integrity of Mr. Blagojevich's future official acts will be in question, his ability to provide effective leadership has been eliminated and the state government is paralyzed.

Given the serious criminal charges that he faces, it is also very likely that Mr. Blagojevich's future official actions will not be calculated to advance the best interests of the People, but rather will necessarily be designed to improve his public standing and position with regard to the pending criminal charges. Furthermore, Mr. Blagojevich clearly will not be able to devote his attention to his official duties because of the pending charges and likely criminal trial.

Further, Mr. Blagojevich's ability to borrow money in his official capacity is compromised. The State has postponed a $1.4 billion short-term debt offering because of the uncertainty over whether the State can provide the necessary accompanying certification that no threatened or pending controversy or litigation challenge Mr. Blagojevich's title to office. The State is also at risk of having its bond rating lowered due to concerns over the pending criminal charges.

Here's more on the bond rating item.

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"Illinois Supreme Court rejects [Illinois Attorney General] Madigan bid to declare Blagojevich 'unfit'":

How Appealing points to a Chicago Tribune article with this headline, and also points to the brief orders from the court on this subject. (There apparently is, and will be, no opinion explaining the judges' reasoning in detail.)

UPDATE: The Chicago Tribune's Steve Chapman says "the Illinois Supreme Court did exactly the right thing."

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