Blagojevich readying for an uphill fight

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

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

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.

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.”

The thousands of hours of tape recordings in the prosecution’s possession, Monico says, may well include things helpful to the governor. Still, he acknowledges, “theft of honest services” can be a difficult charge to defend against because it is so amorphous.

Mr. Fitzgerald has not taken his case to a grand jury, and when he does, he is likely to present more evidence and obtain more testimony from witnesses.

Genson is for now focusing on the impeachment proceedings. When he spoke before the Illinois House impeachment panel Wednesday, he lambasted lawmakers for not having standards of what constitute an impeachable offense, and he criticized the makeup of a panel in which some members, he said, had already declared their opposition to the governor.

“Everyone’s in a rush to judgment,” Mr. Genson said in a news conference after testifying. “This is a real witch hunt.”

The panel’s chairman noted that an impeachment hearing is not bound by usual courtroom rules.

That is true, say Illinois constitutional experts. No standards for impeachment are laid out in the state’s constitution, though the panel is expected to look to federal guidelines and other states’ standards in adopting its own.

“They’ll have to indicate at some point very early on what they consider grounds for impeachment,” says Ann Lousin, a professor at John Marshall Law School, who served two years in the 1970s as parliamentarian of the Illinois House. As to whether it’s inappropriate for certain members to be on the committee, Professor Lousin says, “Generally, people who have already indicated they have prejudged an issue should not sit. But we really are in kind of uncharted waters.”

Genson has also questioned the ability of Illinois Attorney General Lisa Madigan to defend the governor as part of her office, because she petitioned the state Supreme Court to remove him last week – a case the court on Wednesday declined to take.

Blagojevich has made no public statements since he was charged last week, though on Wednesday he hinted to reporters as he headed out for a jog that he would speak soon, telling them, “I can’t wait to begin to tell my side of the story.”

Still, lawyers and legal analysts say the evidence released so far indicates he will have an uphill battle, both in the courtroom and in the court of public opinion, which has largely already condemned him.

Wishing and speculating aloud about desiring cabinet positions in a new Obama administration, high-paying jobs, or campaign funds may not be a crime, they say. But certain statements – such as Blagojevich’s now-familiar comment to an adviser that “I’ve got this thing and it’s [expletive] golden and I’m not giving it away for [expletive] nothing,” about his ability to appoint Obama’s successor to the Senate – show an intent to serve his interests rather than the public’s, they add.

A good defense lawyer may argue that this is politics as usual, says Robert Bennett, a defense lawyer in Washington who has defended many politicians. “But the tapes make it pretty clear that he was going to essentially sell that seat for his own benefit.”

He adds: “Just based on what we publicly know, I think a defense on the merits is unlikely to be successful.”

Still, many here in Illinois are not surprised by Blagojevich’s determination to fight rather than resign.

“This is his bargaining chip,” says Lousin. “It’s the tactic I would expect him to use.”

Material from Associated Press was used in this report.

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