The Volokh Conspiracy

Barack Obama's promise to release a list of contacts “between the transition office and the governor’s office” commits to far less than people think. Indeed, it does not cover either of the two contacts authorized by Rod Blagojevich that were mentioned in the government's affidavit.

Nonetheless, the prevailing view is that, in his brief press conference yesterday, Barack Obama may have promised more than he can deliver.

In trying to meet the first rule of Washington scandal-management – get the facts out on your own terms, and fast – Obama may have promised something he’ll later regret, one expert warned.

“What they’re doing is either setting themselves up for inconsistencies, or creating a cache of evidence that otherwise wouldn’t exist. It never helps when you dig up the dirt in your own yard and you find stuff,” said Stan Brand, a top Washington defense lawyer.

But it’s important to parse what Obama actually said and compare it to what’s in the affidavit supporting the complaint.

I had no contact with the governor’s office. I did not speak to the governor about these issues, that I know for certain. What I want to do is to gather all the facts about any staff contacts that may have taken place between the transition office and the governor’s office, and we’ll have those in the next few days and we’ll present them. But what I’m absolutely certain about is that our office had no involvement in any deal-making around my Senate seat. That, I’m absolutely certain of, and that would be a violation of everything this campaign has been about. That’s not how we do business.

The complaint explicitly suggests two requested contacts between the Obama camp and the Governor’s camp:

1. Nov. 12: “109. On November 12, 2008, ROD BLAGOJEVICH spoke with SEIU Official, who was in Washington, D.C. Prior intercepted phone conversations indicate that approximately a week before this call, ROD BLAGOJEVICH met with SEIU Official to discuss the vacant Senate seat, and ROD BLAGOJEVICH understood that SEIU Official was an emissary to discuss Senate Candidate 1’s interest in the Senate seat. . . .

ROD BLAGOJEVICH said that “one thing I’d be interested in” is a 501(c)(4) organization. ROD BLAGOJEVICH explained the 501(c)(4) idea to SEIU Official and said that the 501(c)(4) could help “our new Senator [Senate Candidate 1].” SEIU Official agreed to “put that flag up and see where it goes.”

110. On November 12, 2008, ROD BLAGOJEVICH talked with Advisor B. ROD BLAGOJEVICH told Advisor B that he told SEIU Official, “I said go back to [Senate Candidate 1], and, and say hey, look, if you still want to be a Senator don’t rule this out and then broach the idea of this 501(c)(4) with her.” . . .

2. Nov. 13: “ROD BLAGOJEVICH asked Advisor A to call Individual A and have Individual A pitch the idea of the 501(c)(4) to “[President-elect Advisor].” Advisor A said that, “while it’s not said this is a play to put in play other things.” ROD BLAGOJEVICH responded, “correct.””

The first contemplated contact is for the SEIU official (identified by the New York Times as Tom Balanoff) to contact Valerie Jarrett or another Obama aide. According to the Times, SEIU officials recently argued that “All the official did . . . was listen to Mr. Blagojevich and his chief of staff and ferry some messages for them.” If the Times is correct, then Balanoff did ferry messages from the Blagojevich camp to the Obama camp, essentially as requested.

But this contact would not be covered by Obama’s promised disclosure since it was not “between the transition office and the governor’s office.” Remember that Obama does not count indirect contacts as contacts, as his statement at his news conference makes clear.

Nor would the second contact be covered by Obama’s promise to disclose. That was between “Individual A” and a “President-elect Advisor,” not “between the transition office and the governor’s office.”

So the affidavit alleges two times that Blagojevich asks someone to convey his corrupt offer to the Obama camp. Neither was directly “between the transition office and the governor’s office,” so neither would be covered by Obama’s disclosure promise.

So what should we expect by way of disclosure from Obama?

Even though neither contact is covered by Obama’s disclosure promise, I expect him to disclose both of them (assuming they occurred). But beyond these two (which they can’t easily escape revealing), I expect them to disclose only a fraction of the other indirect contacts between the two camps. The more explicit the corrupt offer, the more likely it was conveyed indirectly, rather than directly.

The really interesting contact is the one that probably happened on Nov. 10, which likely caused the Obama camp to withdraw Jarrett’s name within hours of their being tipped off to the shakedown attempt.

The other big thing missing from the Obama disclosure promise is a commitment to reveal when he realized that he was being shaken down. Circumstantial evidence points to Nov. 10 as the date for this, but since Obama has denied any awareness of this, I don’t expect much from the disclosure on this issue.

When the Obama camp releases its internal report, again it will be important to read what it says — and what it doesn’t say — about the comprehensiveness of the list of contacts.