Blago's defense team needed to weigh the risks
By Janan E. Hanna
After claiming since his December 2008 arrest that he couldn't wait to testify, former Gov. Rod R. Blagojevich stood before a judge Wednesday morning and announced his decision not to testify.
"Your lawyers have informed me that you have made a choice not to testify in this case,'' U.S. District Judge James B. Zagel said to Blagojevich."That's correct," Blagojevich said, adding that he had "fully and completely" discussed the decision with his lawyers and was making his own choice.
With that, the defense rested its case, presenting not one of the dozen or so witnesses it had said it would consider putting on the stand. Prosecutors then presented a short rebuttal case and the jury was dismissed until Monday when, presumably, the parties will present their closing arguments.
During a brief recess, a jovial Blagojevich leaned over a courtroom bench and signed autographs for courtroom observers.
Blagojevich was charged with 24 counts of corruption for allegedly conspiring to sell a Senate seat vacated by President Obama to the highest bidder and running the state like a racket, doling out jobs, grants and contracts in exchange for campaign contributions. His brother, Robert Blagojevich, who headed the Friends of Blagojevich Campaign for about six months in 2008 was also charged. Robert Blagojevich did testify and insisted he never engaged in quid-pro-quo behavior tying state action to campaign contributions.
Sam F. Adam, one of Rod Blagojevich's lawyers, said Tuesday that he did not believe the state proved its case so that there was no need for Blagojevich to take the stand.
The decision is a gamble since in its opening statement, the defense promised the jurors they would hear from him. The jurors will be instructed that his decision not to testify should not factor into their deliberations. Jurors are not supposed to hold that against any defendant, although some invariably do and will in this case.
Instead, the only words from Blagojevich the jurors heard were profanity-laden tapes of Blagojevich talking with his aides, saying things like his power to appoint someone to the Senate was "(expletive) golden," that he wasn't going to give it up for nothing; that Obama owed him something in exchange for considering Valerie Jarrett for the job and other grandiose, arrogant and explosive statements contained on a couple of dozen wiretapped conversations that the prosecution admitted into evidence.
His former aides also testified against him, saying that Blagojevich was desperate to build up his campaign war chest before Jan. 1, 2009, when new ethics laws would take effect, limiting campaign contributions from businesses doing more than $50,000 in state business.
Taking the stand could have proved treacherous for Blagojevich, who is prone to angry outbursts whenever he's challenged — as the tapes showed. He would be hard pressed to deny that he had a quid-pro-quo state of mind and intent given the contents of the tapes.
He would have to engage in a Clinton-esque legal parsing of his own words to survive on the stand, a task he's not likely savvy enough to pull off.
Imagine a prosecutor asking him: "Mr. Blagojevich, what did you mean when you told one of your aides 'where is my fundraiser … tell Rahm [Emanuel's] to have his brother have a fundraiser', while you were holding back a $2 million grant that you had approved for a school in Emanuel's congressional district?"
He would probably say the request for the fundraiser had nothing to do with his decision to hold up the grant and dole it out in small pieces. How persuasive would the jury find his explanations?
Other examples abound. Blagojevich instructed one of his aides to shake down John Johnston, the owner of two horse racing tracks in the Chicago area, for campaign cash as a piece of legislation favorable to the industry languished unsigned. How would he explain his decision to hold off on signing the legislation he supported while asking for campaign cash?
And what about the testimony of Gerald Krozel, a prominent member of the road construction industry, who testified that Blagojevich asked him for campaign cash, saying he could push forward a Tollway spending bill that would benefit the industry. Instructing his aide Lon Monk to hit up Krozel, Blagojevich is heard on tape saying: "If they don't step up, (expletive) 'em. I won't do the bigger amount in January."
Once again, explaining away the linkage between state action and campaign fundraising would require cool, calm skilled parsing. I don't think his sometimes charming demeanor could carry him through unscathed.
And there was the emotional testimony of Patrick Magoon, the CEO of Children's Memorial Hospital explaining that he had been approached by Rob Blagojevich, at Rod's suggestion, for a $50,000 campaign contribution in exchange for an $8 million to $10 million increase in Medicaid reimbursement payments to pediatric doctors. Magoon was told by the governor that he had approved the payments and three days later Robert called him to ask for a donation. Imagine him trying to explain that away as merely coincidental.
Finally, explaining away the charges that he tried to benefit from his power to appoint a senator would be formidable. He is heard on tape saying he wasn't going to give it away. He wanted a Cabinet post, an ambassadorship, a job with a union organization, funds to start a nonprofit — funds provided by Obama's billionaire friends like Warren Buffett and Bill Gates. He wanted jobs on corporate boards for his wife. He asked his lawyer whether if he appointed himself to the seat, would his wife, Patti, be permitted to be a lobbyist in Washington.
And he even considered the idea of appointing Jesse Jackson Jr. to the Senate after a wealthy Indian-American businessman promised he could raise up to $6 million for Blagojevich if he would do so.
Having previously discounted Jackson, saying he did not trust him, he then instructed his brother to call the businessman and tell him: "I'm elevating Jackson," he said. "I can cut a better deal … some of it can be tangible, up-front … Here's what you gotta do, you gotta talk to [the businessman] …"Some of this stuff has to happen now … you gotta be careful how you express that … pretend the whole world is listening."
Do those sound like the words of a man who doesn't know he's crossing a line?
It's always a risk for a defendant to take the stand since everything the defendant has said can be used against him. Because Blagojevich has said so much, it would have been a perilous risk.
He'll probably proclaim his innocence outside of court between now and the time the case goes to the jury, just as he had to every news, entertainment and reality show host across the country since his arrest.
Janan E. Hanna is a licensed attorney, a lecturer at Northwestern University Medill School of Journalism and a freelance writer. She can be reached at jhan63@gmail.com.
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