Are Blagojevich Tapes Enough Evidence To Convict?

The wiretaps portray what prosecutors call blatant corruption: Illinois Gov. Rod Blagojevich scheming to barter Barack Obama's vacant U.S. Senate seat for a Cabinet post, an ambassadorship or high-paying jobs for himself and his wife.

But just how tight is the case prosecutors cobbled together as they raced to stop what U.S. Attorney Patrick J. Fitzgerald said "can only be described as a political corruption crime spree?"

Former prosecutors and defense attorneys surveyed Wednesday say the recordings are powerful evidence that can go a long way toward landing a conviction and sending the governor to prison.

But some legal experts say prosecutors may have a tough time overcoming the fact that Blagojevich never actually sold the Senate seat.

"The weakness in the government's case seems to be that Blagojevich schemed to do things but didn't actually do them," Chicago defense attorney John Beal said.

Blagojevich, 52, was arrested Tuesday. FBI agents said he used the economic power of the governor's office in schemes to squeeze companies for kickbacks and get Chicago Tribune editorial writers who called for his impeachment fired. He allegedly threatened through a go-between to withhold state financial aid to the Tribune in selling Wrigley Field, the home of the Chicago Cubs.

But prosecutors said the governor's worst offense was a brazen attempt to sell the seat left vacant by Obama's election. The asking price: secretary of health and human services in the president's Cabinet, big-money jobs or campaign cash.

Blagojevich has not yet been indicted. He is only charged in a one-page complaint accompanied by a 76-page FBI affidavit. The government has 30 days to bring an indictment — a time limit that can be extended repeatedly if a judge gives permission.

Veteran attorneys say that when the indictment comes, it may bring to the surface an array of allegations not contained in the affidavit, and then the truest strength of the prosecution's case may be better judged.

The indictment could also produce a more sweeping case with additional charges, on top of the fraud and bribery counts Blagojevich already faces.

Every attorney surveyed said the recordings will be crucial.

"You're going to hear Gov. Blagojevich's own words and they are going to be used against him in court," said New York attorney William Devaney, a former federal prosecutor. "That is extremely powerful evidence."

Professor Albert Alschuler of Northwestern University law school said "the strength of the case is in the wiretap evidence and the nice simple charges about the Tribune and the Senate seat."

"If I were the defense lawyer I would be sitting down with the clients and telling them that this is not a winnable case and we ought to try to strike a deal," he said.

He said one possible bargaining chip is the governor's office itself, if Blagojevich would agree to resign and not appoint a new senator to replace Obama.

New York attorney Martin R. Pollner noted that prosecutors must show "overt acts" to prove a conspiracy and such acts had to be more than talks with advisers.

And yet the recordings mainly consist of just that.

Pollner saw nothing criminal in talks about "what he wants to get and what he wants to receive, his hopes and aspirations."

He also said a defense attorney should ask for a change of venue because of a Fitzgerald news conference comment Tuesday that Blagojevich's actions would "make Lincoln roll over in his grave." He said such words could "poison the jury pool."

Chicago attorney Patrick M. Collins, who as an assistant U.S. attorney successfully sent former Gov. George M. Ryan to federal prison for corruption, said the government's case has been greatly strengthened by the recordings.

But he said defense attorneys are likely to argue that "this is all talk, what were the actions?" He said the government will need to present witnesses to show that Blagojevich went beyond mere talk.

"Attempts are not as attractive to a jury as completed actions," he said.

Chicago defense attorney Ron Safer, a former federal prosecutor, said that the kind of overt act needed to win a conspiracy case should be something specific.

"Politicians often rub each other's back — I'll vote for your bill if you vote for mine is as old as our union — so that's unremarkable," he said. He said that if the case goes to trial prosecutors will focus hard on any specific attempts by the governor to trade the Senate seat or other favors for cash or jobs.

Fitzgerald acknowledged that the charges against Blagojevich were brought earlier than might be expected out of concern that the seat might be sold, an editorial writer might be fired or other corruption might occur if prosecutors delayed.

"I was not going to wait until March or April or May to get it all nice and tidy and bring charges and then say, oh, by the way, all this bad stuff happened because no one was aware of it back in December," Fitzgerald said.

Experts don't believe the rush will produce a shoddy case. After all, Blagojevich had been under investigation for five years, allowing ample time to compile a thorough case.


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