Legal Commentary

The answer surely must be that it depends on how the money is used. Politicians who raise money on behalf of a campaign or party or a cause are not corrupt: They are good fund-raisers. Nancy Pelosi and Howard Dean owe much of their reputation for political savvy to their fund-raising acumen. Presumably, political leaders reward people who do a good job at fund-raising with political appointments. Indeed, some jobs -- e.g., the Ambassador to the Bahamas -- have traditionally been given to Party loyalists who raise lots of money for the incumbent President's political party.

I take these propositions to be uncontroversial: Patronage politics are not a federal crime. So imagine my surprise when I learn that the case against Governor Blagojevich rests, in part, on a tape-recorded conversation, in which he pondered whether to appoint (in the language of the indictment) "Candidate Number 5" to the U.S. Senate because that candidate -- allegedly Jesse Jackson, Jr. -- promised to raise a million dollars.

Does the indictment against Blagojevich rest on the theory that rewarding fund-raisers with plum jobs constitutes an instance of mail fraud -- that is, depriving the people of Illinois of their intangible right to honest services? Or does the case rest entirely on the allegations that Blagojevich demanded money for his personal use? If the former is the case, then the indictment is an extraordinary power grab by a U.S. Attorney. If the latter, then there is nothing in the tape revealed so far that could form the slightest basis for a prosecution of Jesse Jackson, Jr. for offering a bribe in violation of 18 U.S.C. §1346.