Constitutional Opinions

Blagojevich and Scalia

If not for Justice Scalia, Rod Blagojevich would not have been convicted even on one count.

By 8.18.10

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A federal jury convicted Governor Rod Blagojevich yesterday of one single count, remaining undecided on the other 23. And for that one guilty charge, we can thank Justice Scalia.

No, Justice Scalia had nothing to do with the Blagojevich case. But in a way, he had everything to do with it.

Governor Blagojevich was convicted of making false statements to federal agents. He told the FBI that he did not track campaign contributions and kept a "firewall" between his campaign and his official duties as Governor. In other words, federal agents asked him if he broke the law -- and just like any child who is caught with his hand in the cookie jar -- he said "no."

Before 1998, this decision might have been different. Until then, federal courts routinely excused people for what they called the "exculpatory no." If a federal agent came to your house and asked if you did something illegal, and you said "no," you were off the hook for making false statements. 

You could still be convicted of the substantive crime, of course, but simply saying "I didn't do it," couldn't land you five more years in jail. Courts said it was too natural for a person to deny charges against them to find them criminally liable for it.

This "exculpatory no" doctrine was not put into the false statements statute by Congress. It wasn't even in the legislative history. Congress never even considered it. Judges decided to create it because of the basic human instinct to deny, deny, deny.

That is until Scalia took on this judicially-created doctrine in a case called Brogan v. United States. In that case, federal agents visited a union officer at his home. "Have you ever received any cash or gifts from the company while you were a union officer?" they asked him. Naturally, he said "no."

Later, they found out he had in fact received improper benefits. So he was convicted for making false statements to federal agents and appealed to the Supreme Court -- after all, plenty of people were telling this very same lie and walking away under the "exculpatory no" doctrine.

Brogan argued that a defendant had to be excused for his denial to federal agents because the spirit of the Fifth Amendment would be violated when someone is "cornered" and given a "cruel trilemma": tell the truth (and admit guilt), remain silent, or lie (and falsely deny guilt).

Scalia snapped back, saying lying is not an option. An innocent person, after all, would not face the same trilemma. The innocent person only has two options: tell the truth or remain silent.

"Whether or not the predicament of the wrongdoer run to ground tugs at the heartstrings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie," Scalia wrote. The Fifth Amendment gives the alleged criminal the right to remain silent, but not to lie.

Brogan went on to argue that without the "exculpatory no," prosecutors would pile on charges. They would, in effect, add five years to every sentence, because everyone is going to respond "no" to the question "did you do it?"

However, Justice Scalia said that there was no evidence of prosecutors doing that. And even so, it would not be hard for federal agents to tangle someone in a lie that would go beyond the protections of the "exculpatory no." And if this were really a problem, it was for Congress to deal with, not the Court.

Without this decision in Brogan, Governor Blagojevich would not have been convicted of false statements. Instead, the jury would remain hung on all of the charges against him. Whether or not prosecutors piled on charges here, they have Justice Scalia to thank -- 12 years later -- for their one-count conviction.

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About the Author

Russ Ferguson is a lawyer and writer in Charlotte, North Carolina.