The U.S. Court of Appeals for the 7th Circuit reversed today a few of former Illinois governor Rod Blagojevich’s convictions, with an interesting analysis of the difference between political-act-for-political-act deals (allowed) and political-act-for-personal-benefit deals (criminal). From the opinion, by Judge Frank Easterbrook (some paragraph breaks added):

It would not be plausible to describe a political trade of favors as an offer or attempt to bribe the other side. What is more, §666(c) provides that the section as a whole does not apply “to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.” Compensation for a job by someone other than a ghost worker is a “bona fide salary” — and, as we’ve pointed out, the “usual course of business” in politics includes logrolling.
The indictment also charged Blagojevich with wire fraud, in violation of 18 U.S.C. §1343. That the negotiations used the phone system is indisputable, but where’s the fraud? Blagojevich did not try to deceive Sen. Obama. The prosecutor contended that Blagojevich deprived the public of its intangible right to his honest services, which 18 U.S.C. §1346 defines as a form of fraud.
To call this an honest-services fraud supposes an extreme version of truth in politics, in which a politician commits a felony unless the ostensible reason for an official act also is the real one. So if a Governor appoints someone to a public commission and proclaims the appointee “the best person for the job,” while the real reason is that some state legislator had asked for a friend’s appointment as a favor, then the Governor has committed wire fraud because the Governor does not actually believe that the appointee is the best person for the job.
Some historians say that this is how Earl Warren came to be Chief Justice of the United States: he delivered the California delegation at the 1952 Republican convention to Eisenhower (rather than Senator Taft) in exchange for a commitment to appoint him to the next vacancy on the Supreme Court. Whether this account is correct is debatable, see Jim Newton, and Chief Justice Warren himself denied that a deal had been made (though perhaps a political debt had been incurred). If the prosecutor is right, and a swap of political favors involving a job for one of the politicians is a felony, then if the standard account is true both the President of the United States and the Chief Justice of the United States should have gone to prison.
Let us go through the three statutes again. McCormick holds that a politician’s offer to perform a valuable service can violate §1951 as extortion if it involves a quid pro quo: a public act in exchange for a valuable return promise. We’ve already explained, however, why logrolling does not violate §1951. The exclusion in §666(c) for bona fide employment also applies no matter who gets the job. Who would get the public job does not matter to §1346 either.
Indeed, the analysis in United States v. Thompson, 484 F.3d 877 (7th Cir. 2007), applies to Blagojevich too. Thompson reversed convictions under §666 and §1346 that had been obtained on a theory that a public employee’s interest in keeping her job meant that she violated federal law if she performed any aspect of her job in ways that she knew she shouldn’t. (The asserted error in Thompson was an incorrect ranking of bidders for a travel-services contract.) Thompson holds, among other things, that the interest in receiving a salary from a public job is not a form of private benefit for the purpose of federal criminal statutes.
Put to one side for a moment the fact that a position in the Cabinet carries a salary. Suppose that Blagojevich had asked, instead, that Sen. Obama commit himself to supporting a program to build new bridges and highways in Illinois as soon as he became President. Many politicians believe that public-works projects promote their re-election.
If the prosecutor is right that a public job counts as a private benefit, then the benefit to a politician from improved chances of election to a paying job such as Governor — or a better prospect of a lucrative career as a lobbyist after leaving office — also would be a private benefit, and we would be back to the proposition that all logrolling is criminal. Even a politician who asks another politician for favors only because he sincerely believes that these favors assist his constituents could be condemned as a felon, because grateful constituents make their gratitude known by votes or post-office employment.
What we have said so far requires the reversal of the convictions on Counts 5, 6, 21, 22, and 23, though the prosecutor is free to try again without reliance on Blagojevich’s quest for a position in the Cabinet…. Because many other convictions remain and the district judge imposed concurrent sentences, the prosecutor may think retrial unnecessary — but the judge may have considered the sought-after Cabinet appointment in determining the length of the sentence, so we remand for resentencing across the board….