Updated at 2 a.m. ET
A federal appeals court in Chicago has thrown out five of 18 counts against disgraced former Illinois Gov. Rod Blagojevich, who is serving a 14-year sentence for abusing the authority of his office for personal financial gain.
NPR's David Schaper tells our Newscast unit the ruling allows the Chicago Democrat to be resentenced and may shorten the length of time he remains in prison.
David says the five counts include the allegation that Blagojevich offered to appoint President Obama's top aide Valerie Jarrett to Obama's vacated U.S. Senate seat in exchange for Blagojevich getting a post in the president-elect's Cabinet.
"That, the appeals court ruled, amounts to 'a common exercise in logrolling' — the swap of one official act for another — which the court ruled is not illegal," David said.
The court suggested if it were illegal, President Dwight D. Eisenhower and Chief Justice Earl Warren would have gone to prison, when Ike offered Warren a spot on the U.S. Supreme Court in exchange for the support of California's then-governor, Warren, during the 1952 campaign for president.
"It's a little bit of a road map for the politician who functions in the gray zone about where the lines are" as to what's legal, said Patrick Collins, a former assistant U.S. attorney in Chicago who prosecuted the successful corruption case against former Illinois Governor George Ryan.
Other Convictions Stand
The 7th Circuit Court of Appeals said the Democrat is "not entitled to be released" pending further court proceedings. The court called the evidence against Blagojevich in the remaining counts "overwhelming." Blagojevich was convicted on those counts of offering political favors in exchange for campaign contributions.
In a phone conversation with a top aide that was secretly recorded by the FBI, Blagojevich famously said, "I mean I've got this thing...and it's (obscenity) golden. And I'm just not giving it up for (obscenity) nothing."
"It is not possible to call the 168 months unlawfully high for Blagojevich's crimes, but the district judge should consider on remand whether it is the most appropriate sentence," Judge Frank Easterbrook wrote in Tuesday's opinion.
"What the court is doing is playing into a nationwide discussion about what politicians can and can't do in terms of horse-trading," said Leonard Cavise, emeritus professor of law at Chicago's DePaul University. "What they're saying here is when one politician offers a public act to another politician hoping for a public act in return...that is not bribery under the theft of services act."
Family Greatly Disappointed
"This has been a long road for our family," said the wife of the imprisoned ex-governor, Patti Blagojevich, standing with their 12 and 18-year-old daughters outside of their Chicago home. "We've waited a long time for this ruling and we're very disappointed."
As older daughter Amy began to sob on her mother's shoulder, Patti added, "There's been so much that in the last three-and-a-half years that Rod's missed, high school graduations, proms, first days and so if there's any silver lining for us, it's that possibly this is a step in the right direction to getting him home with us, and with his girls where he belongs."
Blagojevich, who was sentenced in June 2011, had maintained that while he was a flawed man, he wasn't a criminal. His appeal, following his conviction, centered on the assertion he had merely engaged in politics as usual.
A spokesman for the U.S. Attorney's office in Chicago, which brought the case, declined to comment on the ruling. Prosecutors could retry Blagojevich on the five counts vacated by the appeals court, otherwise the case would proceed to resentencing.
The Chicago Tribune has curated the documents — and audio — used in the original trial, and you can find those here.
RENEE MONTAGNE, HOST:
And the federal appeals court in Chicago is giving a small victory to a former Illinois governor. The court threw out convictions on five corruption charges against Rod Blagojevich. Unfortunately for him, the other 13 counts will keep him in prison. NPR's David Schaper reports.
DAVID SCHAPER, BYLINE: When it comes to selling a U.S. Senate seat to the highest bidder, as FBI recordings caught former Illinois Gov. Rod Blagojevich trying to do...
(SOUNDBITE OF ARCHIVED RECORDING)
ROD BLAGOJEVICH: I mean, I've got this thing, and it's [expletive] golden.
UNIDENTIFIED MAN: All right.
R. BLAGOJEVICH: And I'm just not giving it up for [expletive] nothing.
SCHAPER: It's not necessarily a crime if what you're trying to get in return is a cabinet appointment. That's according to the unanimous ruling by the three-judge panel on the 7th U.S. Circuit Court of Appeals, which said it's not illegal for Blagojevich to try to get himself appointed health and human services secretary in exchange for appointing President Obama's close friend Valerie Jarrett to Obama's vacated Senate seat.
LEONARD CAVISE: What the court is doing is they're playing into a nationwide discussion about what politicians can and can't do in terms of horse trading.
SCHAPER: Leonard Cavise is emeritus professor of law at Chicago's DePaul University.
CAVISE: When one politician offers a public act to another politician hoping for a public act in return, that is not bribery.
SCHAPER: The 7th Circuit's ruling calls it a common exercise in logrolling and suggests such political bartering is common. Former federal prosecutor Patrick Collins sent another Illinois governor, George Ryan, to prison and has this take on the ruling.
PATRICK COLLINS: It's a little bit of a roadmap for the politician who functions in the gray zone about where the lines are.
SCHAPER: The appeals court did affirm the 13 other counts Blagojevich was convicted of, calling the evidence overwhelming. And while Blagojevich will be resentenced, the court also ruled the original 14-year prison term is not excessive. Outside of the Blagojevich's Chicago home, the reaction of wife Patti Blagojevich is sadness.
(SOUNDBITE OF ARCHIVED RECORDING)
PATTI BLAGOJEVICH: This has been a long road for our family. We've waited a long time for this decision, and we are very disappointed.
SCHAPER: Blagojevich's defense attorney says his advice is to fight on and appeal. A spokesman for the U.S. Attorney's Office in Chicago, which brought the case, declined to comment. David Schaper, NPR News, Chicago. Transcript provided by NPR, Copyright NPR.