Publications
The United States vs. Gov. Blabbermouth
By Kendall Coffey
Special to The Miami Herald
December 21 2008
Behind the stunning headlines of Illinois Governor Rod Blagojevich’s alleged scheme to sell the U.S. Senate seat of Barach Obama is a legal case that raises as many fascinating questions as the political drama. Busted before he received any payoffs from would-be Senators or other alleged victims of the purported crime spree, Blagojevich’s voice was captured on numerous wiretap recordings filled with damaging statements about a variety of scintillating pay-to-play schemes. With Illinois legislators pursuing their own proceedings against the governor, the prospect of an impeachment trial that parallels his simultaneous federal criminal prosecution case adds another wild card to an already wild story. Both Blagojevich and his newly retained counsel make, of course, the usual accusation of “witch hunt” along with predications of vindication when their side of the story is told. Plainly, the defense has an uphill battle, but the reality remains that by arresting Blagojevich before his wheeling and dealing reached actual stealing, prosecutors left some room for Blagojevich to claim he may have neared the line of crime but never crossed it. As a result, the case that may be tried someday in a court of law may not mirror the case being tried today in the court of public opinion.
Although the arrests of Blagojevich and his chief of staff seemed sudden and startling, they followed five years of a slow but steady investigation that began sprinting once the wiretaps commenced in October, 2008. In textbook fashion, the FBI and U.S. Attorney’s Office spent years collecting evidence as well as the convictions of lesser defendants. Once smaller fish defendants were convicted and decided to cooperate with information against higher-ups, the march up the ladder reached the bigger fish trial and conviction this past May of Tony Pezko, a Chicago political kingpin whose fundraiser’s tentacles slithered throughout the state. With probable cause pouring in from multiple sources to implicate Blagojevich as the Great White Shark of Illinois corruption, federal authorities in October met the demanding tests to secure a federal judge’s approval of gubernatorial wiretapping. Ordinarily, prosecutors prefer to continue such wiretaps as long as they are incriminating and, at times, wiretaps lead to scenes of actual payoffs, the gold standard for slam-dunk corruption convictions. As Blagojevich moved toward appointing Obama’s replacement, though, the feds moved in before he could move on with completing his year-end clearance sale of government goodies. Due to the perceived urgency, these arrests were effected before formal charges were filed. Typically, corruption cases are initiated by an indictment returned by a federal grand jury once the investigation is fully completed. When immediacy is needed to prevent serious crimes from being completed, though, arrests can be made by law enforcement officers using a criminal complaint setting forth the officer’s sworn statement of probable cause. In Blagojevich’s case, the criminal complaint executed by the FBI set forth 76 pages detailing the facts to support two crimes, theft of government property and theft of honest services, a law violated when public officials are corrupted by private gain. Under federal rules, the criminal complaint used for the arrests will be followed by formal charges set forth in an indictment to be returned by a federal grand jury. Presumably, the indictment will rely on many of the same facts detailed in the complaint, but will likely specify a number of additional criminal charges, for example, by itemizing each event of criminality as a separate crime, by adding counts for conspiracy and attempted corruption, and, possibly, by adding more defendants.
To prove its case at trial, the roadmap for the prosecution’s evidence is apparently found in the existing complaint with details of meetings, conversations between named and unnamed witnesses, and most vividly, excerpts from gubernatorial wiretaps. Almost assuredly, those tape recordings will be a centerpiece of the prosecution’s case, joined by numerous witnesses including guilty cooperators as well as innocent victims. Significantly, though, it remains to be seen whether any payola accompanied the alleged demands for pay to play. Understandably, corruption cases became stronger when the corrupt official has extracted cash, goods or services for personal use in exchange for doing public favors, a prominent factor in the recent convictions of former Congressmen Randall “Duke” Cunningham and Robert Ney, as well as lame-duck Senator Ted Stevens. Illustrating a dream scenario for a corruption prosecutor, indicted Louisiana Congressman William Jefferson was caught on tape receiving $100,000 from an undercover FBI agent, and, when his home was later searched, $90,000 of those funds were found in his freezer. Without cold, hard cash to show to a jury, Blagojevich prosecutors could pursue convictions by emphasizing criminal attempts and conspiracies to perpetuate corruption, rather than rely principally on completed crimes. To be convicted of an attempted bribery scheme, the law requires that a defendant be intending to receive an illegal payment or other benefit and that, additionally, he has taken at least a “substantial step” toward completion. Conspiracy theories, often a prosecutor’s best friend, center on proving an agreement by two or more people to break the law, coupled with at least one overt act in furtherance of the conspiracy. Because concepts such as a “substantial step” or an “overt act” are not rigidly defined, lawyers often have plenty to argue about in such cases and jurors occasionally struggle over convicting when the evidence shows more bad words than bad deeds.
As a result, the defense will stress the fact that when Blagojevich was arrested he was still empty-handed rather than red-handed with a bag of cash. Since reasonable doubt is all defendants need, the defense will try to portray the scheme as nothing more than trash-talking inside the camp of a frustrated politician’s locker room where ill-advised comments never produced ill-gotten gain. Another defense strategy will be aggressive cross-examination of any cooperating witnesses who made plea deals with the government to testify against the governor in exchange for reducing their own time in prison. Less apparent will be the availability of innocent victims of extortion. Assuming they appear - prosecution papers have identified none so far – such witnesses are more sympathetic so defense lawyers may try to minimize their testimony rather than vaporize it. Other uncertain variables include the many hours of tape recordings that the government has not revealed. While prosecutors have presumably highlighted the most damaging statements, it is common for defendants who know about ongoing criminal investigations to insert various comments into conversations to indicate innocence such as, for example, occasional phrases insisting that nothing illegal is to be done or disclaimers to suggest that they are just kidding or venting. Especially given Blagojevich’s awareness of the FBI investigation, his tapes may well include interludes of professed innocence that defense counsel can use to try to downsize the passages of incrimination.
But no uncertainty is looming larger over the legal landscape than the recently launched impeachment proceedings before the state legislature. An unprecedented event for an Illinois governor, the rules are still being written for an evolving process that could last weeks. Some had hoped the Supreme Court of Illinois would impose a fast exit strategy by finding that the criminal charges against Blagojevich constituted a “disability” authorizing his removal from office, but the Illinois Justice have refused to intervene. Meanwhile, Blagojevich’s skilled counsel is raising every conceivable procedural objection to the impeachment process before the state legislature, insisting that the mere fact of an arrest does not equate to guilt and effectively demanding all the safeguards of a full-blown criminal trial. Some Illinois legislators had hoped that the U.S. Attorney’s Office would share its witnesses and evidence with them, but that scenario seems unrealistic. Understandably, prosecutors have a long-standing reluctance to expose the products of confidential investigations though third parties and a wide-open, free- wheeling political process would be the last place where prosecutors would lodge their most valued witnesses and most guarded information. Recognizing that assembling a full slate of witnesses and documents on their own could take months, one alternative for legislators is to pursue an abbreviated process that drastically downsizes due process in order to minimize delay. Whatever may be the procedures, Blagojevich’s legal team will aggressively exploit any opportunity to use his defense at the impeachment trial to prepare a defense of federal criminal charges. Almost assuredly, defense lawyers would try to persuade legislators to produce documents and other information that might be later used to create reasonable doubt for a federal jury. Along the same line, defense lawyers will demand the right to confront prosecution witnesses so that cross-examinations in legislative halls might be used later to help Blagojevich in a courtroom.
In addition to preparation for an eventual criminal trial, the impeachment battle may also give the Blagojevich team some badly needed leverage in negotiating a plea deal. Prosecutors are allowed to consider the public benefit of a corrupt public officer’s resignation in resolving criminal charges. If Blagojevich’s battle to keep his office cannot be resolved promptly in the legislative arena, there may be a sufficient public need for his removal to justify some reduction in his prison sentence. Having denounced Blagojevich with images of Abe Lincoln spinning in his grave, prosecutors, who clearly have a strong case, will be insisting that this governor must join Illinois’ previous governor in federal prison. Still, given Blagojevich’s thoroughly tape-recorded enthusiasm for deal-making, he may try for one more bargain, hoping to reduce what may otherwise be many years of jail time. So far, the person in the best position to secure Blagojevich’s immediate departure is the governor himself. It may be the best card he is holding, even if it is not the only one.