What's All This Then?

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Friday, June 03, 2011

From what I’ve read of Blago’s testimony so far , he’s well on the road to losing his case - and of course his freedom. Unless the eleven women on the jury are moved by his family history testimony and his and his wife’s tears. But I doubt it. They’re more likely bored by the stories of his rise to and fall from power. And as I warned here a month ago, Blago’s having trouble with Judge Zabel. He’s acting like a member of the prosecution team, telling Blago what he can and can’t say about why and how he believed he was doing nothing wrong in discussions with his aids and others that the prosecution alleges were criminal. Not my idea of what a fair trial should look like when a judge can tell a defendant how he can defend himself - but then I’m not a lawyer so it isn’t that easy to understand the world of courts and judges.

But if I was a lawyer representing Blagojevich and he’s decided to testify in his own defense, my advice to him would be simple. Do not just deny. Tell the truth about what prosecution witnesses have testified to - just make it your version of the truth. When people testify about meetings at which they say potentially damaging things were discussed - don’t say you don’t recall what they said took place - or in one instance that you don’t recall any such meeting ever taking place. The jury isn’t going to believe that these witnesses are creating stories out of whole cloth. They’ll be asking themselves what I would ask. Why would they do such a thing? O.K. Maybe Jesse Jackson . After hearing the disparaging things Blago said about him, he’d have reason to put an anti Blago spin on his testimony - but even so don’t deny that you said he should have given you a $25,000 donation if he’d wanted you to appoint his wife to be head of the Illinois lottery. Just say that you were ribbing him and that Sandy Jackson was never on your "A" list for that appointment.

Backed by all the telephone recordings, it’s likely that the jury will agree with the prosecution that a number of the things they allege in the indictment actually happened. It’s the interpretation of those things on which a verdict will hang - and the task of Blago and his lawyers is to get the jury to agree that however bad it might look in the surface - no crimes were committed. But that task won’t be made easier by Blago posturing as one with only the noblest of intentions, for example wanting only the best for Illinois in his selection of someone to fill Barrack Obama’s Senate seat. It just doesn’t fit the picture of the man as portrayed by those testifying against him and by his own actions since his indictment. His lawyers need to portray him as a flawed, narcissistic individual who had wild eyed ambitions - but who isn’t a criminal.

If I’m representing Blago, I would advise him how to answer questions on both direct and cross examination based on what I would be telling the jury in my summation - and part of that summation would include the following.

"Swearing is not a crime. It’s painful to hear the ex-Governor using the "F" word over and over and you sure hope he doesn’t talk that way at home around his children. But it’s not a crime. Using your influence as Governor to try to help a friend or a family member get a job or in some other way is not a crime. Trying to get your wife a high paying job may be nepotism, but it’s not a crime. If it was, half the elected officials in Cook County would be on trial.

Soliciting campaign funds isn’t a crime. It’s a necessary evil that a lot of people would like to see changed to remove the association with influence. Unfortunately, it’s been going in the opposite direction with the recent Supreme Court decision allowing corporations to pour unlimited funds into political campaigns.
So who do you go to for political contributions? Obviously people with money - often referred to as fat cats. Sure it would be wonderful if a few million people kicked in five or ten or twenty dollars each. That would be democracy at its best. But even Barrack Obama who collected millions from small donors in his presidential campaign had to look to fat cats to make up the additional millions that he needed. It’s a sad commentary but it takes millions to run political campaigns - sometimes even a campaign for a local office in a city the size of New York or Chicago. And it’s not unusual to look for campaign contributions from people and companies who do business with the state - or who have matters pending with the state. And of course some of these people and companies are looking to gain some influence with that state administration.

In Washington, it’s a big business with hundreds of lobbyists with millions of dollars trying to influence legislation. It’s not illegal unless it goes beyond legitimate contributions to a political fund. Former California Congressman Randy Cunningham accepted more than 2 million in bribes - homes, cars, yachts, antiques and got eight years in jail. There’s not a hint of any such thing attached to Governor Blagojevich’s campaign contribution requests and the prosecution can claim all day long that there was the shadow of quid pro quo hanging over requests from people who - as I’ve said - needed the Governor to look favorably on THEIR needs or requests - but there is not proof to back it up, None of the people the prosecution dangled before you made any contribution yet they all get what they wanted from the State. How on earth is any of that criminal?

And now that I’ve used the phrase that the government likes to use as though it by itself is some kind of crime - let me make it clear that political quid pro quo is not a crime - not a local, state or federal crime. If it was - all 100 Senators and all 435 representatives would at one time or another have had to spend some time locked away behind bars. As a lawyers once said during a Congressional hearing - Politics Ain’t Bean Bag. Or, as former Chicago Mayor Harold Washington once said - Politics Ain’t Mumbbley-peg. . How many times do Senators and Representatives support issues that matter to some of their colleagues in return for support for issues that matter to them? There’s probably no way to count them, it’s such a common practice.

But the prosecution says that it wasn’t political quid pro quo when it came to naming someone to fill the President’s former Senate seat. No, he was trying to SELL the seat. Really? What was the asking price? Was there ever a specific offer of a quid pro quo in terms of - you do something big for me personally and I’ll name whoever it is you want in that seat. You heard a lot of idle talk about what Blago wanted to have happen - to become an ambassador or to head up a charitable organization or to be appointed Secretary of Health and Human Services. Most of it was pie in the sky musing - but let’s say he was hoping for a specific quid pro quo from the White House for naming who they wanted to have the job. And if it happened, would that be a crime? If so, maybe the President of the United States needs to be indicted. When Representative Joe Sestak decided to run against Arlen Spector in the Senatorial Democratic primary in Pennsylvania last year - the White House trued to persuade him not to do it, They wanted Spector to run for re-election. and though he’d been a Republican for years and had only recently switched to the Democratic party , he was well known to Pennsylvania voters who had elected him five times in the past and they figured he stood the best chance of holding the seat. So they made an offer to Sestak. Don’t run and we’ll appoint you to something worth while and important. Sestak declined - after admitting publicly that the offer had been made - but guess what? No prosecutor indicted the President or any of his aids for making the offer. . You know why? Because they didn’t consider that kind of political horse trading that goes on every day from coast to coast and order to border to be a crime.

The prosecutor wants you to accept a new kind of law - one that makes the non Bean Bag and Mumbley-peg of politics criminal. I guarantee you that if you wired the homes and offices and tapped the phones of every Governor of every state in the nation for a few months or a few weeks - under the theories being suggested to you by the attorney for the northern district of the State of Illinois - every last one of them would be indicted and put on trial."

And of course, even though Judge Zabel would come down on me like a ton of bricks - I would try to bring up the absence of Rob Blagojevich from the defendant’s table to emphasize the point that prosecutor Fitzgerald doesn’t necessarily care that much about guilt or innocence. He just wants to nail Rod Blagojevich and if letting his brother off the hook in order to achieve that goal succeeds - even though last year he maintained that he too was an arch criminal - justice - or Federal Prosecutor Fitzgerald's version of justice, will have been served.

And in case you’re wondering why I’ve written several pieces more or less defending the ex-Governor, it’s simply because I don’t believe he’s a criminal - just a clown - and sending a clown to jail for clownish activity serves no useful purpose. He’s already been disgraced by his impeachment - the genesis of which was highly suspicious. He’s through in politics. All for being a clown. It should be enough. I just hope for Blago’s sake that there are one or two jurors who will see it that way - more possible if HE heeds the sage advice offered here.