How Strong is the Legal Case Against Blagojevich?

Attorney Maureen Martin makes the legal case for Gov. Rod Blagojevich in the Chicago Tribune today.

She says it's questionable whether a federal crime was committed and Fitz should have waited for the grand jury to indict before arresting him. She says this should be a state bribery case, brought in state court.

Food for thought. A few of her arguments are below:

The first count against Blagojevich alleges he and his chief of staff, John Harris, "schemed to defraud" the people of Illinois of their "honest services." Although the supporting 76-page affidavit is juicy, almost all of it is uncorroborated hearsay supplied by witnesses who were just one side of two-sided in-person conversations with one or both defendants. This supports lodging of state charges. But no matter how heinous the conduct of Blagojevich and Harris, none of it amounts to a federal crime without the use of interstate commerce—the mail or telephone lines—to further the scheme.

Though the federal investigation has been ongoing for five years, agents have been recording telephone calls only since Oct. 21. The language of the complaint makes it clear there isn't yet enough evidence for an indictment: It alleges the accused "would" use interstate communications to further the scheme, not that they "did" use them. It's questionable whether this first paragraph of the complaint sufficiently alleges a federal crime.

On the Chicago Tribune charges:

This paragraph alleges Blagojevich wanted the firing of members of the Chicago Tribune editorial board so that he could get favorable editorial publicity. He threaten to withhold state money for Tribune-owned Wrigley Field renovations if his demands were not meet.

Is favorable publicity "anything of value" to Blagojevich, or must the "value" be monetary? The courts haven't answered this question yet, and it could go either way.

From a public relations standpoint, I doubt the public cares whether he committed a state or federal crime.

Also, from my viewpoint, Blagojevich should be happy he got charged in federal as opposed to state court. I can only imagine how bad the conditions in an Illinois state prison would be compared to a minimum security federal prison camp.

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    The reporter seems to have a bit of a problem (5.00 / 4) (#3)
    by scribe on Fri Dec 12, 2008 at 02:35:50 PM EST
    with actually dealing with the actual allegations.

    The report, quoted above, indicates:

    But no matter how heinous the conduct of Blagojevich and Harris, none of it amounts to a federal crime without the use of interstate commerce--the mail or telephone lines--to further the scheme.

    Well, the reporter appears to have overlooked a few of the allegations.  Paragraph 34:

    34. According to Levine, in approximately late October 2003, after Levine was reappointed to the Planning Board, he shared a private plane ride from New York to Chicago with ROD BLAGOJEVICH and Kelly. Levine, ROD BLAGOJEVICH, and Kelly were the only passengers on the flight. According to Levine, at the beginning of the flight, Levine thanked ROD BLAGOJEVICH for reappointing him to the Planning Board. ROD BLAGOJEVICH responded that Levine should only talk with "Tony" [Rezko] or [Kelly] about the Planning Board, "but you stick with us and you will do very well for yourself." ROD BLAGOJEVICH said this in front of Kelly. According to Levine, Levine understood from ROD BLAGOJEVICH's manner of speaking and words that ROD BLAGOJEVICH did not want Levine to talk to ROD BLAGOJEVICH directly about anything to do with the boards, but that Levine should talk to Rezko or Kelly. Levine also understood that ROD BLAGOJEVICH meant that Levine could make a lot of money working with ROD BLAGOJEVICH's administration. According to Levine, ROD BLAGOJEVICH did not seem to expect a response from Levine, and Kelly then shifted the conversation to something else.

    Last I checked, New York and Chicago were in different states.

    The two-hour telephone conference.  Paragraph 101:

    101. On November 10, 2008, ROD BLAGOJEVICH, his wife, JOHN HARRIS, Governor General Counsel, and various Washington-D.C. based advisors, including Advisor B, discussed the open Senate seat during a conference call. (The Washington D.C.-based advisors to ROD BLAGOJEVICH are believed to have participated on this call from Washington D.C.). Various individuals participated at different times during the call. The call lasted for approximately two hours, and what follows are simply summaries of various portions of the two-hour call.
    a. ROD BLAGOJEVICH expressed his interest in figuring out a way to make money and build some financial security, while at the same time potentially participating in the political arena again. ROD BLAGOJEVICH mentioned the Senate seat, the dynamics of a new Presidential administration with the strong contacts that ROD BLAGOJEVICH has in it, and asked what if anything he can do to make that work for him and his wife and his responsibilities as  Governor of Illinois. ROD BLAGOJEVICH, suggested during the call that he could name himself to the open Senate seat to avoid impeachment by the State of Illinois legislature. ROD BLAGOJEVICH agreed it was unlikely that the President-elect would name him Secretary of Health and Human Services or give him an ambassadorship because of all of the negative publicity surrounding ROD BLAGOJEVICH.

    Picking up a phone is "using interstate wire communications".  Period.

    If I'd wanted to spend more than 5 minutes, I could have found more.

    The reporter seems to have missed the boat here.  Neither Fitz nor any prudent US Attorney would  have brought the case without being sure there was substantial interstate/federal component.  The report seems like Blago's trying some spin through a friendly reporter, or the reporter isn't too bright.

    not seeing it (none / 0) (#12)
    by txpublicdefender on Fri Dec 12, 2008 at 05:09:52 PM EST
    As to the first paragraph, I'm not sure that the fact that they had a conversation about him being on the planning board while they happened to be on an interstate flight is a sufficient federal nexus.  As to the second, it seems like that was a sprawling conversation with lots of talk about things to consider re: the Senate seat, but I don't see any illegality in that paragraph, although he certainly was on the phone.

    I agree with the article's analysis that the legal case here is not so clear-cut.  The charge related to the Tribune is very sticky on the issue of whether favorable editorial coverage would count as something "of value" under the statute.

    Sure, it is a defense attorney's perspective, but this is not the slam-dunk case, at least based on what is in the complaint and affidavit, that others are making it out to be.  There is a lot to be argued.


    Do remember (5.00 / 1) (#20)
    by scribe on Fri Dec 12, 2008 at 08:18:59 PM EST
    that Fitz is only showing enough to support a finding of probable cause and not enough to try the case. If there's one thing the Libby case taught, is that he is a guy who ties up all (or as close to all) the ends he can get his hands on.  

    Picking at the charges in the complaint (5.00 / 1) (#25)
    by Peter G on Fri Dec 12, 2008 at 11:47:59 PM EST
    .. is not very productive, imho.  The complaint is a temporary charging instrument designed to support issuance of a warrant to arrest.  It is very unusual to use a complaint and warrant to initiate a white collar case in federal practice.  The only reason I can think of is that Fitz had reason to believe that a more serious crime and irreparable damage of some sort would occur if he didn't interrupt it immediately with the arrest.  He now has 30 days to get an indictment from a grand jury.  The charges in the indictment, I predict, will not be exactly like those in the complaint.

    That said, I still think that Martin makes some basic errors in her analysis of the federal charges in the complaint.  The first count doesn't charge that Blog and Harris "schemed to defraud." It charges that they conspired to devise a scheme to defraud the people of Illinois of the governor's honest services by use of the mail (or interstate commercial carriers such as FedEx) and by use of interstate wires (phone, e-mail and fax all count).  I cannot see any obvious problem with this theory under the cited law (18 USC 1349, which was new in 2002).  "Honest services" has been narrowed by the courts basically to cover failure to make required disclosures of conflicts of interest, and bribery/payoffs.  Demanding a political tradeoff is not a deprivation of honest services, but a financial reward to the public official or his spouse would be.  The second count of the complaint is laid under 18 USC 666, which is federal program bribery -- seeking or making a corrupt payment of a value of at least $5000 by an official of a state agency that receives more than $10,000/year in federal benefits.  

    But it would be foolish to assume that all the evidence or even the best evidence that Fitz has is laid out in the complaint, or that the charges in the indictment will be the same.  The complaint was filed at this time, in my opinion, to force the governor to stop immediately what he was doing, before it got worse -- both by the force of the arrest and by the publicity value of the sensational bits in the averments of the complaint.

    Then why? (none / 0) (#1)
    by McKinless on Fri Dec 12, 2008 at 02:05:32 PM EST
    Fitzgerald is not the type (I think) to include politics in his calculations of whether to bring a complaint. But has he done so here, possibly to prevent Blag from appointing Obama's successor?

    Just the opposite. (none / 0) (#7)
    by LarryInNYC on Fri Dec 12, 2008 at 02:55:33 PM EST
    I think Fitzgerald made it clear in the Libby case that did give deep thought to politics and precedent in making his charging decisions.

    In this case, I'm guessing that he was pushed to act to avoid Blago actually appointing someone to the Senate, and possibly also to try to get some of this out of the way before the new Administration takes office.


    More here than meets the eye (none / 0) (#2)
    by Saul on Fri Dec 12, 2008 at 02:20:05 PM EST
    Every day a new aspect. It's possible this will be bad for Obama.  To many things I do not get.  

    One is why did not the investigation continue.  If Fitzerald was taping the conversation there had to be someone also discussing quid pro quo.  It takes two to tango.    I do not think that Fitzerald went up to several people and told them to offer the Ill governor money just to see what he would say.  I feel Fitzerald saw where this was going and ended his investigation so as no to many people would be exposed.  

    Also does not Fitzerald have a motive to protect Obama for fear of his job during the next administration?

    I think the gov is not going to go away without a fight.  He probably has been told to fight this since the case seems shaky against him.   I think he has evidence that will be hurtful to Obama and others and is holding it back if he is brought to trial.  Its his ace in the hold for protection. However, if he sees he is going down then he will talk and bring down as many as he can with him.  Maybe out of spite this guy will appoint a republican before he is forced to leave.  I see no law or current ruling that is taking his power to appoint whoever he wishes to fill the Obama vacancy.

    Also Rezko could also talk as previously posted and no telling what he will say.

    There is not one single (none / 0) (#5)
    by eric on Fri Dec 12, 2008 at 02:40:34 PM EST
    iota of evidence that in any way implicates Obama in this.  You are wildly speculating, or perhaps, fantasizing.

    I don't know how this fits the narrative (none / 0) (#8)
    by hairspray on Fri Dec 12, 2008 at 03:12:02 PM EST
    but I see the GOP slime machine starting up.  Obama's popularity in this period is soaring. How to knock him down a peg or two?  Why not try to wrap this whole Illinois gov into a "rotten Chicago political machine that must have been part of Obama's background" to begin the slow water dripping?  I don't know why Fitzgerald, who was accused of being cautious in the Libby case, is jumping ahead now. Is it to protect or hurt Obama?

    Yes, just the opposite (none / 0) (#9)
    by KeysDan on Fri Dec 12, 2008 at 03:15:56 PM EST
    in accord with the complaint.  Blagojevich was disparaging of Obama in barnyard terms and concerned that he could only get what amounted to a hearty handshake (appreciation) from Obama and his staff.  Moreover, we have Fitzgerald's comments at his press conference.  

    I don't think Fitz cares about the political (none / 0) (#6)
    by Angel on Fri Dec 12, 2008 at 02:50:22 PM EST
    implications of the investigation.  He isn't afraid for his job.  He took on the Vice President's number one guy, for dog's sake.  And there is no evidence that Obama had anything to do with any of this.  Sludge is implying that Rham Emmanuel had something to do with it but I doubt that also.  Emmanuel may have been one of the ones that caused this investigation by telling Fitz that Blag tried to shake him down.  We don't know what happened yet but it sure looks like Blag is guilty of something, legalities aside.  

    What's the saying? Guilty as sin? (none / 0) (#4)
    by Angel on Fri Dec 12, 2008 at 02:38:28 PM EST

    from my business law classes: (none / 0) (#10)
    by cpinva on Fri Dec 12, 2008 at 03:38:08 PM EST
    i was taught that "something of value between the parties" needn't be monetary, as long as it was "of value between the parties". it could be a pile of acorns. a contract, to be valid, must contain "something of value between the parties".

    Is favorable publicity "anything of value" to Blagojevich, or must the "value" be monetary? The courts haven't answered this question yet, and it could go either way.

    the courts have answered this question, within the context of contract law, hundreds, if not 1,000's of times. it's a no brainer.

    assuming the proposed agreement, between the gov. and the tribune, were considered to be a "contract", then the issue of "something of value" is not even a subject for discussion.

    This is what I thought (none / 0) (#11)
    by nycstray on Fri Dec 12, 2008 at 03:48:03 PM EST
    but not something we discussed much in art classes  ;) Value is in the eye of the beholder.

    contract law v. bribery statute (none / 0) (#13)
    by txpublicdefender on Fri Dec 12, 2008 at 05:13:18 PM EST
    It's not particularly clear that "something of value" for purposes of the bribery statute is the same as what is necessary for consideration for a contract.  If that were the case, technically, even Obama's "appreciation" could be considered "something of value," as the appreciation of the President of the United States could no dobut be argued to be "valuable."  It's not that simple.

    But aren't jobs a bit easier to argue value on? (none / 0) (#14)
    by nycstray on Fri Dec 12, 2008 at 05:23:42 PM EST
    Being fired = negative value

    Being hired = positive value

    On Obama and appreciation, it seems like so far his appreciation doesn't extend into much value. Richardson and Kerry come to mind . . .  ;)


    I agree (none / 0) (#21)
    by befuddledvoter on Fri Dec 12, 2008 at 09:43:38 PM EST
    Further, you have the requirement of NOTICE as constitutionally mandated for criminal law.  Not so for contract law.  Because of this the courts employ the rule of lenity in construing criminal statutes.  There must be notice that a particular act is a crime.  If it is ambiguous, and I would argue that "something of value" is, since it has not been specifically construed, then the rule of lenity applies.

    the problem with that argument (none / 0) (#23)
    by cpinva on Fri Dec 12, 2008 at 11:35:53 PM EST
    even Obama's "appreciation" could be considered "something of value," as the appreciation of the President of the United States could no dobut be argued to be "valuable."

    is that it presupposes a formal contractual obligation between the parties: "i will agree to publicly express my support for your election if, in return, you publicly express your appreciation for my doing so."

    since this doesn't appear to be the case, the issue of that publicly expressed appreciation having "value" is moot.

    i know little about bribery statutes, and just enough about contract law to be considered disarmed and not very dangerous. that said, i suspect that the statutes on bribery require that there be an actual "meeting of the minds", also a basic requirement of a valid contract.

    in my job, we must, at least once annually, review the statutes on bribery of public officials, and what our response/actions should be, in the event we think an attempt is being made to do that with us. the proof required always sounds really close to the requirements for a valid, enforcable contract, with one exception: the contracted for act is illegal.


    Money owed by the Gov. may have influenced DA (none / 0) (#16)
    by Yes2Truth on Fri Dec 12, 2008 at 06:36:27 PM EST
    Governor Blagojevich still owes approximately
    $500,000 to the law firm where Mr. Fitzgerald was formerly employed.  

    The firm no longer represents the governor due to the fact that the governor has not made a payment on the balance he owes in quite some time.

    EDIT (none / 0) (#17)
    by Yes2Truth on Fri Dec 12, 2008 at 06:41:05 PM EST
    I was mistaken in saying that Fitzgerald had been formerly employed at the firm which formerly represented the governor.  Here is a correct statement and what I SHOULD have said in my first comment:

    "Winston & Strawn had been the governor's primary counsel since federal investigators began looking into allegations of corruption five years ago. The governor had relied on the legal representation of Winston partner Bradley Lerman, a former federal prosecutor in Chicago. Mr. Lerman declined to comment."


    How many people ave been indicted? (none / 0) (#18)
    by Fabian on Fri Dec 12, 2008 at 06:59:24 PM EST
    It could be that the only person they have real evidence against is Blagojevich.  Or they could have more evidence and just be waiting to see if even more falls into their laps.  They could even have other wiretaps still operating!

    I wonder how many people are concerned, anxious, worried or even panicked about what Blagojevich might say.  Who has a guilty conscience?  Who has a clean conscience?  Who will lawyer up?

    Maureen Martin does not make much of a case. (none / 0) (#19)
    by Mitch Guthman on Fri Dec 12, 2008 at 07:12:02 PM EST
    Not to nitpick, but it would be more accurate to say that he's lucky to have thus far only been charged in federal court.   I don't think it's an either or proposition.   I believe that he can still be charged in state court for these same transactions under the separate sovereigns doctrine.  (See, e.g., United States v. Claiborne, 92 F.Supp.2d 503 (E.D.Va.); (tandem state-federal prosecutions not prohibited under "separate sovereigns doctrine ").

    I also have to say that Maureen Martin's histrionic posturing is the sort of thing that gives the entire civil rights community a bad name.  As someone who appears to be a federal criminal defense lawyer, she must know that the elements of the various federal crimes, which might apply here, have been given very broad and generous interpretations in the public corruption context. This is especially true of the "thing of value" element and it is clearly a general principle that the people are entitled to honest representation by federal office holders or in transactions involving appointments to federal offices.  If Martin's getting paid to write this as part of Blago's defense that's one thing--good for her---being a defense lawyer can be dirty work but it pays the bills.  But it's hard to see any sort of lofty principles at stake here.  I suspect that Martin doesn't really either.  I think she's reaching.  Let's wait and see what the evidence is and how the case is charged before getting all worked up.

    I do, however, agree that the case as it now stands is much weaker than if the Feds had simply allowed the corrupt transaction to play itself out and be captured on tape.  There might even have been the opportunity to tickle the wire to generate additional, even more incriminating conversations by surfacing word of the investigation while maintaining the taps and bugs.  Clearly, Fitzgerald was worried about allowing a "tainted" US Senator to be appointed and indicted shortly thereafter.  In that context, however, Blagojevich is less the victim of prosecutorial overreaching than he is the ironic beneficiary of Fitzgerald's desire to protect the senate from a senator who gained his appointment corruptly.

    On the other hand, Blagojevich (who had something like a 4% approval rating before this was disclosed) isn't likely to get the benefit of the "rally round" effect that is traditional in public corruption prosecutions.   Plus, if the state AG can't get the courts to remove him one way, she may just decide to remove him by tossing him in state prison for the next twenty years.   Those tapes are a guaranteed conviction.  Blago is toast and deservedly so.

    there's no such thing. (5.00 / 1) (#24)
    by cpinva on Fri Dec 12, 2008 at 11:43:14 PM EST
    Those tapes are a guaranteed conviction.

    they can be interpreted differently by different people. a jury may see them as standard political quid pro quo, not as a criminal act.

    Blago is toast and deservedly so.

    i'll grant you he's a sleazeball, and an embarassment to IL, but i'll wait for the last reel of this drama to run, before opining on his crispiness.


    Yikes! (none / 0) (#22)
    by befuddledvoter on Fri Dec 12, 2008 at 09:51:44 PM EST
    Criminal defense attorney saves us from the tyranny of government left unchecked. Each time a criminal defense attorney protects the defendant's constitutional rights, he/she protects everyone's rights, even yours.  



    Will Blogo, in Lieberman-like resentment (none / 0) (#26)
    by bob h on Sat Dec 13, 2008 at 05:52:31 AM EST
    at the Democrats, appoint a Republican before they can remove him?

    Kennedy/Blagojevich where is the difference? (none / 0) (#27)
    by SA Johns on Mon Dec 15, 2008 at 11:07:04 PM EST
    Why would it be considered alright for the Kennedy's to buy the new york senate seat.  If it's illegal for one to sell it, it must mean that it is illegal for the other to buy one.  Of course if the kennedy's are exempt from the same ethics then shouldn't that be explained to us.