The wiretapped conversations that federal prosecutors intend to use against impeached Illinois Gov. Rod Blagojevich in his upcoming corruption trial are the very ones that Mr. Blagojevich himself is asking the court to ensure get played.
The ousted governor was in federal court here Wednesday to plead not guilty to a new set of indictments related to the bribery scandal. He used the occasion to file a motion asking that “every second, every minute, and every hour that the government secretly taped” him be played during his trial. He described his request as “throwing down the gauntlet.”
In his statement, Blagojevich addressed US prosecutors this way: “If you’re on the side of truth and justice like you say you are, and if this is a crime spree like you claim it was, then don’t hide behind technicalities. Play the tapes.”
Blagojevich’s updated 24-count indictment adds eight charges – racketeering, attempted extortion, bribery, conspiracy to commit bribery, and conspiracy to commit extortion – to the original counts filed last April. Federal prosecutors drafted a new indictment to eliminate the charge of "honest services" fraud, which the US Supreme Court may reject (in an unrelated case) before Blagojevich's trial gets under way in June. "Honest services" fraud is part of a 1988 federal law meant to help prosecutors convey to jurors an image of impropriety by government officials without needing to prove the tangible benefits to those officials.
A wily move?
At first blush, the tapes would appear to damage Blagojevich: Transcripts released by prosecutors reveal that he and his wife, Patti Blagojevich, used coarse language in allegedly negotiating political favors. But legal experts see a wiliness to the move – consistent with Blagojevich's other efforts to court public opinion, such as appearances on talk shows and reality TV where he has portrayed himself as unfairly maligned by a dishonest political machine in Springfield, the state capital.
Blagojevich may also be trying to drag out his trial in the hope that jurors will "lose focus and lose interest," Stoltmann says. Playing all the tapes would be likely to extend the trial from four to six weeks to several months. “As a general rule," he adds, "jurors are not going to send a guy to prison for a long time if they are bored or not paying attention.”
The release of 500 hours of taped conversations would also give Blagojevich an opportunity to show himself in chief-executive mode, making important decisions and acting with authority – a role that may help to offset the image of a nefarious and self-interested politician presented in the parts of the wiretap transcripts that have been released so far.
“There are clearly horrible snippets,” says Stoltmann. “But I guarantee you there are also hours and hours of legitimate conversations that he wants the jurors to hear.”
Judge Zagel to decide how much gets heard in court
Standing in Blagojevich’s way is federal Judge James Zagel, who may yet rule that only tapes relevant to the case can be used at trial. It's unlikely that any judge would "let him admit months' worth of irrelevant evidence," says Ron Safer, former chief of the Chicago US Attorney’s criminal division. Blagojevich already knows that, he adds. When the former governor says, in his statement, that he will “walk the walk, which is right up to the witness stand,” and that he expects prosecutors to do the same, he is grandstanding in a bid to influence potential jurors in his case, suggests Mr. Safer.
“He’s saying, 'The tapes will set me free'. He can say that because he knows these tapes are going to be released to the public,” Safer says.
Not only will the judge disallow tape recordings that are not pertinent to the charges, but the court also has to contend with the privacy rights of people taped in conversations with the former governor, which will further reduce the number of tapes allowed in court.
“The only tapes released to the public will be the ones for use on trial and released when used on trial or pretrial hearing,” Safer says.
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