Sunday, December 21, 2008

Is The Case Against Blogojevich A Strong Case?




            On December 9th, 2008, Chicago U.S. Attorney Patrick J. Fitzgerald filed a criminal complaint and held a press conference and announced the arrest of the Illinois governor Rod Blagojevich, in pertinent part, because Blagojevich was alleged to have offered to sell Barack Obama’s vacated senate seat in return for personal favors and/or for cash.  This was despite the fact the 78 page complaint makes no suggestion that the governor had received nothing of value and has not made the appointment of the Senate seat.  (


            The reaction to this press conference has been swift and persuasive.  Morning, noon and night round the clock television and newspaper coverage are in effect.  To say that the You Tube Video of the Fitzgerald news conference has gone viral is an understatement.  Steven Thomma in the McClatchy papers that a new Ipsos/McClatchy online poll has found:


  • 95% of adults in Illinois that that Blagojevich should step down;
  • 92% of adults in that state think he should be impeached and removed from office;
  • The Illinois House of Representatives voted unanimously this week to create a committee to impeach him;
  • 44% feel the state should have a special election
  • 35% said the power to appoint a successor should be transferred to Lt. Governor Pat Quinn
  • He is the 4th Governor from Illinois to be charged with a felony since 1960


But trial attorneys are now beginning to suggest that the portion of the case involving the sale of the open Senate seat may not be the slam dunk that the media thinks it is.  As the conversation goes, that portion of the Blagojevich case maybe sexy, but also may be very defensible.  In other words, there is a possibility that at least on those allegations, he could be acquitted.  He hired a tough cookie, Edward Gensen, who represented R. Kelley, and former governor of Illinois George Ryan.  He said, “He’s not guilty, so we’re going to court.  We’re not agreeing to impeachment.  If you read the transcripts closely, you’ll find nobody did anything.  People are just talking, and that’s not against the law…Bad language doesn’t make you a criminal.” He has called the case a ‘fairy tale’ and the process (impeachment proceedings) ‘a witch hunt.’ (See Countdown Video, Blagojevich lawyer calls case a witch hunt, 


Bulldog Gensen is not the only lawyer who has expressed reservations in the Government’s case.  The difference between criminal activity and the normal course of political deal making is apparently a very thin line.  Does just talking about selling a political office for personal favors, like a bribe, constitute in and of itself a crime?  Does the argument that contributions to one’s campaign fund (a derivative public benefit?) in return for support in an election (another so called public benefit) sound very much like the play for pay scandal (private benefit derived from a public office) that Blago is charged with? The former is a commonly accepted practice, but the latter could be construed as attempted bribery, a crime that does not have great sex appeal in the minds of Chicago juries.  (See Scott Turow Video, Rachel Maddow Video Making the Case,  Turow, an experienced prosecutor and writer said, “Juries regard it (attempted bribery) as a crime that takes place in the head, bad thoughts, not actual conduct.”  In other word, the thinking of a crime only falls within a grey area in politics and although prosecutable, these thoughts do not necessarily lead to a conviction.


Other attorneys have expressed reservations as well.  Robert S. Bennett, one of Washington’s best-known white-collar criminal defense lawyers said, ““This town is full of people who call themselves ambassadors, and all they did was pay $200,000 or $300,000 to the Republican or Democratic Party… “You have to wonder, How much of this guy’s problem was his language, rather than what he really did?”  The NY Time last week said, “In the case of Mr. Blagojevich, it would be legal for the governor to accept a campaign contribution from someone he appointed to the Senate seat. What would create legal problems for him is if he was tape-recorded specifically offering a seat in exchange for the contribution. What would make the case even easier to prosecute is if he was recorded offering the seat in exchange for a personal favor, like cash, a job or a job for a family member.”  In this case, the disclosed wiretaps so far seem to show a Blagojevich that was willing to discuss trading a Senate seat for personal favors to his aids, but not with anyone else.  So the question remains, is talk enough to convict him on the pay to play for the Senate seat count?


“It’s a very difficult case for a number of reasons; not the least is the nebulous nature of the charges and the inherently difficult issues when you’re talking about a person executing his First Amendment right to promote a particular politician,” said Michael D. Monico, a former federal prosecutor who is now a criminal defense lawyer in Chicago.


“Merely thinking about something is not a crime,” said Mr. Monico, a lawyer for Christopher Kelly, a former Blagojevich fund-raiser who was indicted last year on tax charges “Just talking about something is not a crime. You need another action for someone to commit a crime.”


In an article written by Mike Robinson for the AP, Chicago Defense attorney John Beal said, “"The weakness in the government's case seems to be that Blagojevich schemed to do things but didn't actually do them."


Robinson’s piece goes on to say, “Chicago defense attorney Ron Safer, a former federal prosecutor, said that the kind of overt act needed to win a conspiracy case should be something specific.


"Politicians often rub each other's back -- I'll vote for your bill if you vote for mine is as old as our union -- so that's unremarkable," he said. He said that if the case goes to trial prosecutors will focus hard on any specific attempts by the governor to trade the Senate seat or other favors for cash or jobs.


New York attorney Martin R. Pollner noted that prosecutors must show "overt acts" to prove a conspiracy and such acts had to be more than talks with advisers.


To me this is an important point on this count of what appears to be a public official conspiring to bribe another public official in return for personal favors. 


      The essential elements for a federal conspiracy are spelled out in §371 of the federal criminal code, and may be illustrative here.  They are: (1) an agreement (2) between two or more persons (3) to act together in committing an offense, and (4) an overt act in furtherance of that agreement.


The term "overt act" means some type of outward, objective action performed by one of the parties to or one of the members of the agreement or conspiracy which evidences that agreement.  The notes included with the form federal jury instruction state, an overt act is “any step that indicates that the execution of the conspiracy has begun. This can be an innocuous act and need not be illegal unto itself. For example, if two persons agree to rob a bank, then purchase a ski mask, the act of buying the mask may constitute the overt act required to charge the two with conspiracy.


The overt act must follow the agreement and must be executed with an intent to carry out the purpose of the conspiracy. For example, if one of the potential bank robbers buys a ski mask after the agreement is made, the purchase may not constitute the overt act if the ski mask will not be worn to carry out the ROBBERY. An overt act need not be committed by each and every conspirator; an overt act by one conspirator solidifies the offense for all coconspirators. Thus, a conspirator who does not participate in the overt act can be charged with conspiracy.”


In other words, the defense attorneys are right, just talking about doing something without taking any further steps to do an illegal thing may not constitute a crime.  Does Fitzgerald have a smoking gun on those tapes, or have we already heard and read his best shot?  His investigation is ongoing, so we shall see what develops.  It is of some importance that Blagojevich has been under federal investigation for years.  The NY Times reports that he has had ongoing battles with Mayor Richard M. Daley of Chicago; he irked Michael Madigan, the powerful Democratic state speaker, over the budget; and he infuriated just about every legislator by staying put in Chicago (rather than moving his family to the Governor’s Mansion in Springfield). His penchant for promoting his headline-grabbing proposals — like those for universal preschool and cheaper drugs from Canada — on television, rather than in the quieter halls of Springfield, also won him no friends.


“Rod reveled in fighting with members of the General Assembly,” said Representative Tom Cross, the state Republican leader. “He came out of the box fighting: He was the populist, and we were the big, bad General Assembly. He didn’t seem interested in policy, the budget was in disarray, and he was never there.”


His approval ratings that had sunk to 13 percent as details of the federal investigation into his administration had seeped out over the past three years.  At Christmastime in 2004, a nasty spat cropped up between Mr. Blagojevich and his political benefactor and father-in-law, Richard Mell, a ward chief on the northwest side of Chicago, whose political connections helped to put Blago in office, the fallout stretching well beyond the family, offering some of the clearest public hints of Mr. Blagojevich’s coming troubles. In response, Blagojevich shut down a landfill operated by a relative of Mr. Mell, saying it was taking types of waste it was not licensed to accept. Mr. Mell accused Mr. Blagojevich of shutting the facility as a personal vendetta against him, and then accused his top fund-raiser of trading appointments to state commissions and boards for campaign donations, just the image Mr. Blagojevich had been trying to avoid.  This lead to extensive investigations of Blago’s political activities and legal fees to the firm of Winston and Strawn in amounts alleged to have been paid in excess of $1 million dollars with an additional $750,000.00 still due and owing.  Other politicians avoided public appearances with him and Blago seemed to spend all of his time answering questions about political corruption allegations even before this criminal complaint was filed.


Lisa Madigan, the daughter of his enemy Mike Madigan, and Attorney General of the State of Illinois, filed a case with the Supreme Court of Illinois requesting that Blago be dismissed on the basis of incapacity.  She also happens to be considered by many to be his chief rival for the Governor’s seat.  That case was dismissed this week by the Illinois Supreme Court.


Governor Blagojevich campaigned on the basis of political ethics and reform.  He is sinking on a leaky boat of corruption and allegations of pay to play politics.  The real question is this:  Is he just a talker and a politically disliked man, who in this instance has taken no steps toward the completion of an illegal plan or is has he been caught on tape, red handed?


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