Posted by Eugene Volokh:
Is It a Crime To Trade a Senatorial Appointment Decision for a Cabinet Job?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228850357
The charges against [1]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 the senate
seat 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?
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.
References
1. http://www.chicagotribune.com/media/acrobat/2008-12/43789434.pdf
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