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Blagojevich readying for an uphill fight

In the Illinois governor’s corruption case, the law gives prosecutor the edge, analysts say.

By Staff writer / December 18, 2008

Illinois Gov. Rod Blagojevich is surrounded by the media before jogging at his home in Chicago, Wednesday.

Paul Beaty/AP



If Illinois Gov. Rod Blagojevich intends to fight both impeachment and the criminal charges against him, as he has been signaling, a possible line of defense might be an assertion that talk is talk – and nothing more.

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The talk, infamously vulgar as quoted from federal wiretaps on the governor’s phones, is of course about his apparent desire to get money or a plum job in return for an official decision, such as naming Barack Obama’s successor in the US Senate. One area of argument, hinted at by Governor Blagojevich's high-profile defense lawyer, is that the wiretap evidence is inadmissible in court. Another may be whether there’s evidence that the governor had an actual plan to extract favors and would carry it through.

As impeachment proceedings began this week in Springfield, the state capital, many legal analysts say the 76-page complaint the US attorney already filed against Blagojevich lays out a fairly strong case – especially in a somewhat nebulous area of law that centers on whether a government official has deprived Illinois residents of his honest services.

“The prosecutor has the advantage of lots of laws that are very favorable to him and unfavorable to the defendant,” says Prof. Al Alschuler of Northwestern University School of Law, noting that US Attorney Patrick Fitzgerald has prosecuted a number of similar cases, including some that looked weaker than this one, without losing any. Even if none of Blagojevich’s apparent attempts to gain personal and campaign favors came to fruition, he says, “a scheme is enough.”

It’s hard at this early stage to determine the grounds on which the governor might fight the charges of conspiracy to commit fraud and solicitation of bribery. The full body of evidence obtained in the wiretaps is not known, and there is so far no indictment to examine, legal analysts caution.

But fight them, it seems, he will. On Wednesday, he jogged and joked with reporters in Chicago, as his attorney, Ed Genson, lashed out at lawmakers for conducting an “Alice in Wonderland” impeachment process. On Thursday, Mr. Genson told the impeachment panel the wiretapped conversations were "illegally obtained" and should not be considered. Some insiders suggest Blagojevich’s hard-line stance may be a strategy to gain a deal with prosecutors in exchange for his resignation or cooperation.

Others, though, see ways in which he could mount a credible defense.

What the public has seen so far doesn’t necessarily constitute a criminal offense, argues Michael Monico, a Chicago defense lawyer who has defended clients in several corruption cases. “It’s a very fine line between saying to someone, ‘I need your help, and I’d like to help you,’ ” – an action Mr. Monico says is an unfortunate part of day-to-day politics – “and saying, ‘Unless and until you give me something of value, I won’t help you....’ There has to be some act that is pursuant to an intent to defraud.”