- The Washington Times - Wednesday, August 18, 2010

The failure to win conviction on more than one relatively minor charge against former Illinois Gov. Rod R. Blagojevich is the latest setback for the Justice Department in a string of recent public corruption cases.

But the Blagojevich case also illustrates one way that the government has consistently been successful in such prosecutions: winning convictions on the cover-up rather than the underlying crime.

Prosecutors had boasted before the 11-week trial that Blagojevich’s “political corruption crime spree” would “make Lincoln roll over in his grave,” and snippets of damning wiretapped conversations featuring a foul-mouthed Blagojevich were released by prosecutors and widely reported in the media.

But after two weeks of jury deliberations, the Democrat was convicted Tuesday on only a single count of lying to the FBI.

“If something appears to be a slam dunk case in the media, it is not necessarily a slam dunk case in reality,” said Stuart Slotnick, a former prosecutor who now works at the New York firm Buchanan Ingersoll & Rooney. “This slam dunk case didn’t seem to be a slam dunk case to the jury.”

It later emerged that the jury may been only one vote away from convicting Blagojevich of seeking to sell the U.S. Senate seat left vacant by the election of Barack Obama in late 2008. The voting margin on the remaining 22 charges varied, members of the jury told various media outlets Tuesday evening.

While Blagojevich still faces a potential five-year prison sentence and a certain retrial, Tuesday’s verdict was at least a temporary victory for the former governor, ousted from office after his 2008 indictment.

And it is also, at least temporarily, a defeat for the Justice Department, which has been dealt several similar blows in corruption cases - most notably, apparent Justice Department misconduct in the 2008 prosecution of Sen. Ted Stevens, Alaska Republican, who was killed in a plane crash last week.

In that case, Stevens had been convicted of seven felony counts stemming from gifts and home renovations he did not report on financial-disclosure forms. The Senate’s longest-serving Republican, holding his seat for 40 years, he lost a re-election battle a month after his convictions.

But in light of revelations that the prosecution team withheld evidence that could have possibly bolstered Mr. Stevens‘ defense, Attorney General Eric H. Holder Jr. took the extraordinary step of asking a judge to throw out the conviction.

The judge did so and the Justice Department chose not to seek a retrial, effectively ending an expensive and high-profile corruption case that led to the indictment of the fist sitting senator in a generation.

In the prosecutions stemming from the scandal surrounding superlobbyist Jack Abramoff, the Justice Department also hit a snag after a promising start that saw more than a dozen guilty pleas, including that of Abramoff, who is nearing the end of a four-year sentence.

In one of the few cases that did not end in a plea agreement, the government could not win a conviction against former Abramoff associate Kevin Ring, whose trial ended in a hung jury last year. A retrial for Mr. Ring is expected to take place this fall.

In another Abramoff-related case, the Justice Department agreed to allow a former high-level Labor Department political appointee plead guilty to a misdemeanor and receive probation after the case against him began to unravel.

Horace M. Cooper had been charged with taking thousands of dollars in gifts from Abramoff and faced 40 years. But prosecutors dropped all but one of the charges after a judge called the case “troubling” and asked them to produce more details about the allegations.

And earlier this week, the department announced it would not seek charges against former House Majority Leader Tom DeLay, the Texas Republican who had been seen as the most high-profile and powerful target of the Abramoff investigation.

Carl Tobias, professor at University of Richmond School of Law, said he does not necessarily see any common threads in the cases that have vexed the Justice Department lately, but said its troubles may say something about the nature of politicians who end up in trouble.

“It could be that much of what they do is close to the [legal] line,” Mr. Tobias said.

Barry J. Pollack, a white-collar defense attorney with the D.C. firm Miller & Chevalier agreed, adding that in white-collar and political corruption cases, there are “a lot of gray areas.”

“The line between what is distasteful conduct and what is illegal conduct has never been particularly clear,” he said, adding that the department has become more aggressive in going after ambiguous cases.

But it’s not as if the Justice Department has not been without victories recently: Last summer, former Rep. William Jefferson, Louisiana Democrat, was convicted on 11 of 16 counts in a case made famous by the $90,000 he stashed in his freezer. Jefferson was sentenced to 13 years in prison, but was allowed to remain free pending appeal.

Blagojevich will also remain free despite his conviction for lying to FBI agents when he said he kept his political campaigns and official duties separate and he did not keep tabs on who made campaign contributions.

Mr. Pollack said Blagojevich’s conviction is typical of some high-profile cases in which no crime is ever proved, except that the defendant lied during the investigation.

Two other Justice Department cases are parallel examples; the case of homemaking celebrity Martha Stewart, convicted of lying to authorities as part of an insider-trading case, but never convicted of actual insider trading, and former vice presidential aide I. Lewis “Scooter” Libby Jr., convicted of lying to a grand jury investigating who leaked the identity of former CIA operative Valerie Plame, though no one was ever charged with actually revealing Ms. Plame’s identity.

“It’s long been true in Washington in political scandals that people almost always get in trouble for the cover-up rather than he underlying event, and that’s often true in criminal law as well,” Mr. Pollack said. “”It is often easier to prove an after-the-fact lie than the underlying conduct was illegal.”