Advance Sheet
W h at Pr ice Glory?
Robert E. Shapiro
The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP,
Chicago.
The poet Homer famously described his
hero Achilles, whose “wrath” is the subject matter of The Iliad, as having been
given a stark choice by the gods early on
in life. He could live a short life in which he
was guaranteed to achieve immortal glory.
Or he could opt for a long life that would
forever be shrouded in obscurity. That we
still speak of Achilles today may underscore which option he chose, even if it took
Homer’s artistry to ensure Achilles’s glory
survived. But the point is Achilles saw in
glory something of supreme value, while
perhaps recognizing that a long life by itself, no matter how pleasurable, did not
necessarily measure up.
You might wonder if Achilles ever regretted his choice. Not during his lifetime.
In Homer’s Odyssey, however, Odysseus—
or, as we call him, Ulysses—claims to
have visited Achilles in the underworld,
reporting that Achilles then preferred the
obscure life of a serf on earth to the glorious reign of the King of all the shades in
Hades. This was true even with his worldly glory still intact. Even setting aside that
Odysseus was a notorious liar, is glory not
what it is cracked up to be?
Is glory or fame something of real value? Is it, as it was initially for Achilles,
the superior choice? Shakespeare takes
up the same issue in his Henry IV, Part
One. There, Hotspur, an Achilles-like figure, has such great prowess and courage
that he inspires the admiration even of
his rival, King Henry. Notwithstanding
Hotspur’s defiance and disloyalty, Henry
muses about how he prefers Hotspur to
his own son, Hal, the future Henry V.
Hotspur is fixated on glory, deciding
to fight at an inopportune time so as to
heighten his glory, even in death.
To sharpen the problem, Shakespeare
also gives us an alternative to Hotspur, an
extreme at the other end of the spectrum.
This is the character of Falstaff. Falstaff
lives for his sensual pleasures—eating,
drinking, and whoring his obscure life
away. As the rapt attention of the commentators proves, his life seems an attractive one too, even when he shows abject
cowardice on the battlefield (“the better
part of valor is discretion”) or spurns the
honor Hotspur worships (“honor is a mere
scutcheon”). He uses all his wiles, including warfare itself, only to make money to
fund his debauches. But he appeals nonetheless. We might note that the aims of
both Falstaff and Hotspur allow for the
senseless slaughter of innocent men—
which may be Shakespeare’s ultimate
comment—but they do so in the pursuit
of seemingly worthy but dramatically opposite ends, one for glory, one for seemingly baser physical pleasures.
Homer and Shakespeare give us these
ancient and modern characters to have
us reflect on what is most valuable in life.
How shall I live, as Socrates might ask?
Is honor necessary to make life meaningful? Or should the goal be self-preservation and bodily stimulation, which
requires the pursuit of money making.
In our world of rich celebrities, not to
mention the celebrity of wealth itself, it
would seem possible to have both. But
those outliers should not be allowed to
obscure the problem. Midas and Croesus
notwithstanding, the ancients still understood that one of the key life choices
is between different understandings of
what is valuable in living one’s life, and
both fame and money making have their
claim to superiority and their advocates.
If the choice were presented to us
today in the stark terms the ancients
seemed to favor—a short life of immortal glory or a long life of successful but
obscure money making—it seems likely
that most of us would chose (indeed, have
chosen) the latter. This may be a reflection of the commercial world we live in.
But we still understand the allure, and
the value, of fame. Most of us likely want
to make our “mark” on the world as well,
recognizing that it may take a long life to
do so. We all somehow acknowledge that,
if not the purpose of life exactly, fame or
Published in Litigation, Volume 42, Number 3, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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at least recognition adds to its worth. It
may not be tangible, and it tends to be
fleeting, but fame does seem a desirable
end. Undoubtedly, Facebook’s ability to
make everyone a celebrity would be far
less appealing otherwise.
The Case of Rod Blagojevich
So what should one make of the almost
Falstaffian depreciation of fame in the
Seventh Circuit’s recent decision in
United States v. Blagojevich, 794 F.3d 729
(7th Cir. 2015)? The case involved the now
infamous former governor of Illinois, Rod
Blagojevich, appealing from his conviction for, among other things, extortion,
wire fraud, and corrupt solicitation.
Blagojevich seems almost a caricature of
the glory-seeker. He betrayed not just the
usual ambitions of a politician; he aspired
to something somewhat higher. Indeed,
Most of us would
choose a long life of
successful but obscure
money making over a
short life of immortal
glory.
even amidst the headlines about his impeachment in 2009, he turned to that
sure-fire means of contemporary fame,
an appearance on a reality TV show.
In general, for Blagojevich, life was
much more about celebrity than money making, which is what got him into
trouble to begin with. In late 2008,
while governor of Illinois, Blagojevich
got the twisted idea to try to sell off to
the highest bidder the Senate seat being
vacated by then president-elect Barack
Obama. Blagojevich was particularly
heavy-handed in his approach. He cast
about like a baseball general manager for
the best package of goodies that could be
assembled to induce him to make a trade
of this august post. With celebrity aspirations in mind, he approached the president-elect’s representatives and offered
to name Obama confidante Valerie Jarrett
to the Senate post in return for a cabinet
position for himself. In a more pedestrian
moment, he proposed contributions toward his own reelection expenses as an
alternative. Caught in the act by federal
authorities, Blagojevich was promptly impeached for his misdeeds and removed
from office by the Illinois legislature.
He was then tried before a federal jury
in Chicago, which found him guilty of
extortion as well. He was promptly sent
off to serve more than a decade in jail,
achieving along the way a kind of fame
he perhaps never anticipated.
So far, so good. But Blagojevich appealed his jury conviction. One of the
problems he raised lay in jury instructions on the extortion claims, which allowed the jury to convict him for seeking
to obtain the cabinet position. Offering
to trade the Senate seat for money for
Blagojevich’s campaign chest would,
according to Judge Frank Easterbrook,
clearly violate the relevant criminal
statutes. But the glory of a cabinet seat
Judge Easterbrook deemed a bridge too
far. Because the jury was allowed to convict on the latter conduct as well as the
former, the convictions on those counts
had to be vacated and Blagojevich was
granted a new trial.
Does this make sense? To reach his
conclusion, Judge Easterbrook surveyed
the relevant criminal statutes to see what
kind of corrupt conduct would qualify as a
crime. He found an easy case in the Hobbs
Act, which required a trade of the Senate
position for “property.” A cabinet positon
hardly seemed to qualify as the latter, so
conviction under that statute could not
survive. See id. at 735–36. More difficult,
however, were the “corrupt solicitation
of funds” statutes. Despite their title,
these prohibited by their express terms
the solicitation by Blagojevich of “anything of value.” Was the cabinet seat not
something valuable to have? Not according to Judge Easterbrook. He somewhat
dubiously proclaimed that “[i]t would not
be plausible to describe a political trade
of favors” as falling within this proscription. Id. at 736.
Beyond this ipse dixit, the court drew
additional comfort from language in the
statute that says that it does not apply to
seeking value in the form of a bona fide
salary paid in the usual course of business. See id. The cabinet position was
surely one that would be paid, even if
Blagojevich already had, at the time of
the misconduct at least, a very substantial job already and a salary was not what
he was after. The wire fraud claim suffered a similarly quick demise. Where was
the fraud? Judge Easterbrook dismissed
the idea that the appointment of either
Jarrett or Blagojevich would qualify as
such, even if neither President Obama nor
Blagojevich genuinely believed their appointees were the best people available
for the job. See id.
Judge Easterbrook turned a deaf ear
to the prosecutor’s pleas that Blagojevich
was seeking something of value for himself, in the form of a post for which he
was not suited. He might easily have
added the prospect of fame and greater
glory, even if there were reason to believe Blagojevich might not acquit himself
particularly well in his new position. But
Judge Easterbrook was having none of it.
In a political discourse of some significant cynicism, Judge Easterbrook noted
that the current recipient of the post of
secretary of state is a former member of
the Senate and “it wouldn’t surprise us if
this happened at least in part because he
had performed a political service for the
President.” Id. at 737. Even more pointedly,
he observed how ambassadorships often
go to successful fundraising bundlers in
presidential campaigns. See id.
Published in Litigation, Volume 42, Number 3, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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This, according to the court, is “logrolling,” not extortion, and should not be
criminalized. See id. But even apart from
the cynicism, these examples are somewhat dubious. They sound in gratitude,
not trade, let alone extortion. Whatever
the aspirations of then Senator Kerry or
however hopeful fundraising mavens
might be on the campaign trail, and no
matter what indebtedness a president
might feel toward those who have helped
him, there is no explicit quid pro quo. No
one would claim there is any such transaction agreed upon, and most would be
shocked if there were.
Perhaps from some dubiety regarding
these examples, Judge Easterbrook decided to reach into his historical grab bag
to cite an (in)famous case from the 1950s.
This was the supposed deal—denied by
all concerned—whereby Governor Earl
Warren of California supposedly threw
the weight of his Republican convention
supporters behind General Eisenhower,
all but ensuring the latter’s nomination for
the presidency in 1952. The “trade,” if that
is what it was, comprised the appointment
in return of Warren as chief justice of the
United States Supreme Court. This was an
appointment Eisenhower was reported
later to have regretted, thereby seeming
to confirm the existence of a questionable deal.
The “Corrupt Bargain”
Even more pertinently, Judge Easterbrook
might have cited the “Corrupt Bargain”
of 1824. This was charged by Andrew
Jackson who made it part of his successful run for the presidency in 1828.
Jackson claimed that, in the absence of
an Electoral College majority in the 1824
election, John Quincy Adams and Henry
Clay supposedly agreed that Clay would
support Adams for president in the House
of Representatives in return for Adams
naming Clay to be his secretary of state,
a position considered at the time to be the
stepping stone to the presidency. Jackson
contended this pact wrongly denied him
the presidency after the four candidates
(including the now-forgotten William
Crawford) had encountered electoral
deadlock. In this case too, all the supposed participants denied the deal, but
it was undeniable that Clay’s support
for Adams in the House was decisive for
Adams’s victory, and Clay did become secretary of state.
Judge Easterbrook termed all such
practices beyond the intention or reach
of the statutes. But his reasons smack
somewhat of a too commercial way of
thinking and are thus a bit thin. There is,
as the examples at the beginning show,
a salient if not superior value to glory or
celebrity too. Why should Blagojevich’s
quest for glory rather than money not be
a matter of criminal concern? It clearly
was “something of value,” and not just to
Blagojevich. Still, there are some important issues lurking in Judge Easterbrook’s
analysis. Money would have benefited
Blagojevich almost exclusively, even if
not as much as glory. By contrast, there
was always the possibility, however remote, that Blagojevich might have fooled
the oddsmakers and turned out a decent
cabinet secretary, doing good for us all.
Or, as the bona fide salary qualifier suggests, he might at least prove competent
or adequate to the job.
There is also the problem of uncertainty. Money is tangible. We know when it
is being sought and being had. Fame is
more ephemeral. It is more a hoped-for
result of an opportunity rather than the
opportunity itself. There would be some
instant fame, or at least reputation, in being appointed a cabinet official. But again,
the real value, which is far from assured,
stems from how well one is perceived to
have done the job.
But the clearest difference is not that
between money and honor, but between
a trade and something else. The fact that
Blagojevich sought the glory of public office rather than cash does not make the
matter less a question of a trade for value.
The Eisenhower example founders not
just on the lack of proof of a deal, but also
on the uncertainty of the arrangement.
Eisenhower was not even yet his party’s
nominee. And even if assured by Warren’s
support of his nomination, he had no reason to be sure he would win the election.
The “Corrupt Bargain,” if there was one,
is a closer call and for that reason more
compelling. Certainly, the public found it
so, triumphantly electing Jackson in 1828
for that reason, among others.
A clear deal for
undeserved glory
should concern
us all.
In effect, Judge Easterbrook’s historical argument does not work any better
than his cynicism. “Logrolling,” as he
called it, which involves the hope or even
expectation of being rewarded, is very
different from what Blagojevich attempted by way of an express deal. Perhaps
what Judge Easterbrook was getting at
is that the quest for fame is best left to
the political world to manage. But that
certainly cannot be the result of any insignificance in fame or glory itself. And
a clear deal for undeserved glory should
concern us all. q
Published in Litigation, Volume 42, Number 3, Spring 2016. © 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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