Blagojevich Subpoenas Sen. Durbin and Harry Reid

Thursday, former Gov. Rod Blagojevich subpoenaed President Obama. Today, Dick Durbin said he's been served with one.

Durbin had a well-publicized telephone conversation with Blagojevich shortly after the November 2008 election when politicians were starting to focus on who would get the Senate seat Obama was vacating. By all accounts, they discussed a number of candidates.

"I had one conversation with this governor and I've reported it to you and everybody else over and over again," Durbin said at the news conference. "And if he or the government wants to call me in, I'll tell the same story."And Team Blago told Fox News Harry Reid is also being called.

Why Harry Reid? Blago claims Reid pressured him not to appoint Jesse Jackson, Jr. to Obama's vacant senate seat. Nor, according to Blago, did Reid want Danny Davis or Emil Jones to get it. He feared they'd have a tough time winning re-election.[More...]

“Of course Sen. Reid spoke to the governor of Illinois -- just as he spoke to the governors of New York and Colorado when senators from those states accepted jobs in the new administration,’’ Manley said. “It is part of his job as majority leader to share his thoughts about candidates who have the qualities needed to succeed in the Senate.”

Where's Blago going with all this? Not to prison willingly. From his January, 2010 interview in Esquire:

"Where the f**k is Woodward and Bernstein? It's shocking that this could happen in America. Because I'm telling you, I am innocent of every single allegation. Every one. I've been falsely accused, I've been lied about, I've been maliciously treated. Worse than that, my family and my children have to suffer. And larger than that, the people of Illinois had their governor stolen from them based on false accusations that were made knowingly."

On playing all the tapes:

"When the full story's heard, and my conversations on those telephones — hundreds of hours that were secretly recorded — are heard and people hear me motherf**king these phony politicians and how sickening they are, because the people are getting screwed, it'll correct itself. Here's a guy who believes in the power of the simple truth, and he doesn't care who's out to get him. He's going to fight back, and he believes that the strength of the truth in America is still more powerful than all these people — and that's what my story will be when I'm vindicated. Don't pass judgment — just wait to see the result. You'll see."

So what's his defense? Sounds like it is that of course he wanted something in exchange for the Senate seat, but not for himself personally, it was for the people of Illinois. He talks about a deal to nominate Lisa Madigan:

"They didn't stop a crime spree," says Blago. "They stopped a routine political deal that would've put five hundred thousand people to work, given fifty thousand to three hundred thousand people access to health care, helped keep four thousand people a day in their homes — that's what they stopped."

"I hate her and him," Blago says. "But if I could get a public-works jobs bill, if I can get the expansion of health care, if I can get foreclosure relief" — all of which, Blago claims, were being held hostage by the Speaker — "I'd hold my nose and make her a senator. Rahm Emanuel, we talked to him — my chief of staff was talking to Rahm about putting this deal together, and I was prepared to do it because it was the best I could get for the people.

"The day before they arrested me, I directed my chief of staff to work out the tactics and get it done, and all of a sudden, the next morning, they're arresting me?

What about the HHS position, the SEIU job, the ambassadorship? Just tossing ideas around he says, some were good, some not. "humdrum horse-trading and political spitballing."

He's even optimistic about the outcome:

"People out there who are getting f**ked by big, powerful forces in faraway places — they don't know who's doing it to them, or they have some idea who's doing it to them, but they don't feel like they have any control over it. I will show you can fight back when you have righteousness and the truth on your side."

And yes, he'll be taking the stand:

"I'm absolutely going to testify," Blago promises. "Absolutely. I'm going to go up there and tell the whole truth — and the complete truth."

The Government will be waiting for him. This week it filed a 16 page motion (available on PACER) to preclude Blago from introducing anything that smacks of an attempt at jury nullification. Some of the things it anticipates and wants a ruling prohibiting: "Politics as Usual" arguments like "the defendants may argue that their conduct is simply what all politicians do and, to the extent their conduct violates the law, then the law is unrealistic or unfair." Or selective prosecution:

The defendants should also be barred from arguing that the government has selectively chosen to prosecute them and, therefore, the jury should acquit them. In particular, defendant Rod Blagojevich has repeatedly suggested that he is being unfairly singled out while other individuals participate in misconduct and are not prosecuted. Alternatively, the defendants may generally suggest they are being singled out despite the fact that their conduct is simply the way “politics works.”

Also, the Government wants to preclude any attempt at arguing outrageous government conduct.

The “thrust of the defense” in these types of cases “is this: the prosecution was not nice or could have done it better and so the jury ought to acquit, whether or not guilt has been proved beyond reasonable doubt.”

And no talk about a government conspiracy.

Defendant Rod Blagojevich has repeatedly suggested that somehow this prosecution is motivated by the ill will of the government, or the government working as part of a conspiracy with other individuals to bring about his downfall. Such arguments are wholly improper before the jury. To the extent that either defendant believes their due process rights have been violated based on improper government conduct, those issues should be raised with the Court and decided by the Court.

Nor does the Government want Blago to milk his arrest and claim it was improper:

To the extent the defense seeks to question government agents or other witnesses about why the government arrested defendant Rod Blagojevich or John Harris, or suggest that such arrests were improper, it should be barred from doing so. The government’s subjective reasons for arresting defendant Rod Blagojevich have nothing to do with his factual guilt or innocence.

And no arguing snitch testimony is improper.

It is improper to argue the jury should acquit the defendants because jurors should not condone the government’s use of cooperating individuals, the decision to enter into plea agreements with certain individuals, or the decision to immunize individuals in order to obtain testimony.

...while the defendants may permissibly argue that none of the cooperating witnesses testifying in the case should be believed because of benefits they have received, the defendants should not be permitted to argue that the jury should acquit them because it is, or should be, improper for the government to engage in the practice of using cooperating individuals, or offering plea agreements or immunity to witnesses in exchange for testimony.

And no using his family for sympathy.

While the government acknowledges that a defendant is permitted to introduce limited testimony concerning his background, the government respectfully moves this Court to preclude evidence and argument regarding the defendant’s family needs, including any arguments or evidence designed either to imply a motive or excuse for defendant’s criminal conduct or to invoke sympathies regarding the impact of a conviction upon the defendant’s family.

Such evidence is irrelevant to the defendant's factual guilt and is designed for no other purpose than to invoke improper appeals for jury nullification. Accordingly, such evidence or argument is properly excluded.

It sounds like the Government wants to argue if he said the words, he's guilty, without giving him a chance to put the words in context or explain himself. Particularly with respect to the Senate seat allegations, considering no crime was ever consummated -- he never did appoint anyone to the Senate seat -- it is all just talk. Jurors are going to have to determine his intent.

It doesn't seem like the Government has a lot to fear from allowing Blago to explain himself, but given the lengths they are going to in order to restrict what he can say, they apparently disagree.

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  • Display: Sort:
    Pass the popcorn (5.00 / 1) (#3)
    by lambert on Sat Apr 24, 2010 at 09:54:29 AM EST
    can you put this (5.00 / 1) (#5)
    by Jeralyn on Sat Apr 24, 2010 at 11:57:25 AM EST
    in the open thread and keep this one to Blago, or explain how it fits into his case?  I'd like to keep this one on U.S. v. Blago, thanks, :)

    Surely it's as in point as... (none / 0) (#6)
    by lambert on Sat Apr 24, 2010 at 12:18:47 PM EST
    ... (from your first link) the question "So, which side is subpoenaing Rahm Emanuel?" ?

    That certainly seems popcorn-worthy to me. YMMV.


    Rahm Emannuel's (5.00 / 1) (#7)
    by Jeralyn on Sat Apr 24, 2010 at 03:35:21 PM EST
    statements to the FBI are part of the case and memorialized on FBI 302s, referenced in the pleadings. The report by Greg Craig on who in the Obama Administration had contact with Blago about the senate seat acknowledges Rahm did. Rahm's conversations with Blago were likely recorded.

    From the standpoint of the legal case, I am curious as to which side would want him to testify.


    Well (none / 0) (#1)
    by Ga6thDem on Sat Apr 24, 2010 at 09:06:38 AM EST
    I suppose we are going to be hearing about this case for quite a while.

    Former Governor Blagojevich (none / 0) (#2)
    by KeysDan on Sat Apr 24, 2010 at 09:45:57 AM EST
    is entitled to the best defense available, and it seems that the "politics as usual" argument is among his strongest.  The testimony of Senators Durbin and Reid fit into that position, in that he can attempt to show that it is "business as usual" for a governor in such instances to be lobbied, if not pressured--and that is the nut of his case.  And, the public and flashy aspects of these Senators at trial, and even the attempts at getting President Obama's testimony on videotape, fit into the government's worries about jury nullification.

    Agreed (none / 0) (#4)
    by Zorba on Sat Apr 24, 2010 at 10:27:32 AM EST
    I'm not in favor of the government trying to limit so severely what Blago's lawyers are going to present, and I hope the judge doesn't allow the restrictions.  The government can worry all it wants about jury nullification, and some of its fears may be justified.  OTOH, I happen to believe that jury's have this right, and it's up to the prosecution to present such a strong and compelling case that the jury won't be tempted to nullify.