Lawyers question whether case against Blagojevich is airtight
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WASHINGTON: When Patrick Fitzgerald, the U.S. attorney in Chicago, announced the arrest of the Illinois governor, Rod Blagojevich, Fitzgerald said he had acted to halt a political crime spree that included what he called an "appalling" effort to sell off the Senate seat vacated by President-elect Barack Obama.
But some lawyers are beginning to question whether the juiciest part of the case against Blagojevich, the part involving the Senate seat, may be less than airtight. There is no evidence, at least none that has been disclosed, that the governor actually received anything of value - and the Senate appointment has yet to be made.
Ever since the country's founding, prosecutors, defense lawyers and juries have been trying to define the difference between criminality and political deal-making. They have never established a clear-cut line between the offensive and the illegal, and the hours of wiretapped conversations involving Blagojevich that prosecutors recorded, filled with crass, profane talk about how to benefit from the Senate vacancy, may occupy that legal gray area.
Robert Bennett, one of Washington's best-known white-collar criminal defense lawyers, said Blagojevich faced nearly insurmountable legal problems in a case that includes a raft of corruption accusations unrelated to Obama's Senate seat. But Bennett said the case raised some potentially thorny issues about political corruption.
"This town is full of people who call themselves ambassadors, and all they did was pay $200,000 or $300,000 to the Republican or Democratic Party," said Bennett, referring to a passage in the criminal complaint filed against the governor suggesting that Blagojevich was interested in an ambassadorial appointment in return for the Senate seat. "You have to wonder, how much of this guy's problem was his language, rather than what he really did."
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In presenting his case, Fitzgerald said Blagojevich had crossed the line from deal-making to criminality, citing an example in the complaint in which the governor discussed with an aide obtaining a $300,000-a-year job from the Service Employees International Union in return for naming a candidate to the seat.
"We're not trying to criminalize people making political horse trades on policies or that sort of thing," Fitzgerald said. "But it is criminal when people are doing it for their personal enrichment."
But politicians routinely receive political contributions in return for their decisions, whether they involve making appointments or taking a stand on legislation.
And while prosecutors have brought increasing numbers of political corruption cases in recent years, they have done so using laws that make it a crime for an official to deprive the public of "honest services." They are based on statutes that never define exactly what conduct might be illegal, but what they do require is evidence that an official at least tried to seek something of value in return for an official action.
In the case of Blagojevich, it would be legal for the governor to accept a campaign contribution from someone he appointed to the Senate seat. What would create legal problems for him is if he was tape-recorded specifically offering a seat in exchange for the contribution. What would make the case even easier to prosecute is if he was recorded offering the seat in exchange for a personal favor.
The government has asserted that the wiretaps show that Blagojevich told his aides that he wanted to offer the seat in exchange for contributions and for personal favors, including jobs for himself and his wife. But talk is not enough. Any case will ultimately turn on the strength of the tapes, and whether the governor made it clear to any of the candidates for Senate that he would only award the seat in exchange for the favor or favors.
Several lawyers cautioned that the complaint presented last week was a snapshot of the evidence that Fitzgerald had amassed so far, in an investigation that is continuing. By arresting Blagojevich on Dec. 9, Fitzgerald acted without having presented his case before a grand jury. He is now likely to use such a panel to obtain more witness testimony.
Fitzgerald's decision to bypass a grand jury initially could signal a belief on his part that he did not yet have a fully prosecutable case on his hand, though it appears to have been prompted at least in part by the publication in The Chicago Tribune on Dec. 5 of an article that tipped off Blagojevich that investigators were listening in on his conversations.
Fitzgerald has also said he was worried that if he did not intervene, Blagojevich might go ahead with some of his schemes - including appointing a successor to Obama.
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