LegWoman

Trying to go toe-to-toe with a federal judge

2010-07-26T22:57:00.003-05:00

By Janan Hanna

Much like a house of worship, a federal courtroom is steeped in traditional rules of decorum; chief among them an unremitting deference to the judge. Cross him at your own peril.

So it was an unorthodox turn of events Monday when a defense lawyer representing Rod Blagojevich told U.S. District Judge James Zagel that he could not abide by his rules.

Before he was to begin his closing argument on behalf of his client, former Illinois Gov. Rod Blagojevich, Sam Adam, Jr., an experienced criminal defense lawyer in the state system, told the judge he’d rather be held in contempt and go to jail than follow the judge’s ruling.

The issue was what Adam would be permitted to say to jurors in his closing remarks in defense of his client, who is charged with federal corruption.

Outside the presence of the jury, Adam told the judge he believed he was entitled to argue that there were witnesses who were not called who might have elicited evidence exonerating his client. Doing so would be a clear violation of the Federal Rules of Evidence – rules in which Zagel is well versed.

“I have a man who is fighting for his life,” Adam thundered. “I understand your honor’s word . . . but I cannot follow your order.”

“You will follow the order because if you don’t, you’ll be held in contempt,” Zagel responded calmly.

“I will go to jail on this, your honor.”

With that, Zagel adjourned the proceedings for the day and cautioned Adam to take the rest of the evening to formulate another argument, or, perhaps turn the job over to another defense lawyer on his team. He made this decision based on what he said was Adam’s “profound misunderstanding of the law,” and, he reminded Adam “it doesn’t do your client any good to be held in contempt of court.”

Adam wanted to talk about two convicted close associates of Blagojevich, Antoin “Tony” Rezko, and Stuart Levine. Both helped Blagojevich raise campaign funds for the Friends of Blagojevich campaign organization, which is at the center of the prosecution’s conspiracy and racketeering case. It appears Adam was attempting to introduce evidence that was not presented at trial.

Judge Zagel kept reminding Adam of the well-established rule that a lawyer may not “draw an evidentiary inference that the other side did not call a witness that you could have called.”

The defense called no witnesses.

Patrick J. Cotter, a partner in Barnes & Thornburg LLP where he is a member of the firm’s litigation department and white-collar crime defense practice, explained the rule this way:

“Based on what I understand happened in court, it sounds to me like the judge is saying, correctly, that you can not argue or imply to the jury that witnesses neither side called would have testified in any particular way to help either side or hurt either side.”

Under the rules, you cannot refer to what witnesses who were not testifying would have said, Cotter explained.

It seems unclear what Adam’s strategy is. He created a dramatic scene that overshadowed the government’s closing argument.

Zagel did note that some judges, likely in the state system, might be more lenient and allow this kind of argument.

If so, strict limits would be imposed. The lawyer might be allowed to mention that the other side didn’t call witnesses they could have, but would likely not allow the lawyer to argue about what the witnesses might have said or not said.

Blagojevich’s lawyers have unsuccessfully tried to get the case - based largely on FBI wire-tapped conversations - thrown out on grounds that the charges are a violation of Blagojevich’s First Amendment rights. They unsuccessfully tried to argue the so-called “advice of counsel” defense – that Blagojevich had no criminal intent because he was talking with his lawyers while he was allegedly scheming to sell state jobs, contracts and a U.S. Senate seat in exchange for campaign contributions.

Having presented no witnesses, the defense team cannot argue about what their evidence showed, and, as we learned today, they can’t argue about what they could’ve shown had they called any, or what the other side’s phantom witnesses would have said.

The judge ordered the lawyers to meet him in court at 8:45 Tuesday morning, perhaps to go over the rules one more time. Presumably, Adam or another member of the defense team will then present the defendant’s argument and the prosecution will issue its rebuttal argument.

http://www.huffingtonpost.com/janan-hanna/blago-the-lawyers-made-me_b_658239.html

2010-07-26T22:19:00.002-05:00

http://www.huffingtonpost.com/janan-hanna/blago-the-lawyers-made-me_b_658239.html

Chicago Daily Law Bulletin, Blago's defense team needed to weigh risks

2010-07-21T18:22:00.000-05:00

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.

Judges Increasingly Keep Jurors' Names Secret: Blago Judge Challenged

2010-07-15T18:41:00.000-05:00

A couple of decades ago during a high profile mob case, Chicago courtroom artist Andy Austin sketched the jurors in their likenesses with one exception: there were paper bags over their heads.

The jurors' names were not revealed to the public (or to the lawyers in the case) and the jury had been sequestered, evidently to protect them from would-be tamperers and to keep them isolated from any
news accounts of the case.

A similar sketch could be drawn today in the courtroom of U.S. District Judge James Zagel, but in place of paper bags, an artist might top the jurors' torsos with computer monitors or smart phones.
Zagel, who is presiding over the federal corruption trial of former Gov. Rod Blagojevich and his brother, Robert Blagojevich, had ruled that the jurors' names would not be revealed until after the verdict was announced. On the first day of jury selection, Judge Zagel told a lawyer for the Chicago Tribune and other news organizations seeking transparency that he was concerned that bloggers would try to reach jurors.

And last week, responding to a 7th U.S. Circuit Court of Appeals opinion that he hold a hearing on the question, Zagel said he himself had received three emails about this case and had been called out to on the street by someone expressing an opinion about Blagojevich.
In short, technology, which has made us all so accessible, necessitated opaqueness.
Or did it? The judge is likely pondering the question in preparation for a hearing at the end of the month.

The 7th U.S. Circuit Court of appeals ordered the hearing, saying the judge erred by telling jurors they would not be identified and subsequently telling lawyers for the news organizations that their motion was untimely.

There is a presumption of openness in court proceedings, including publicizing the names of seated jurors during a trial. But the presumption can be overcome if a judge makes a showing that the "jurors' safety would be jeopardized by public knowledge, or the defendant has attempted to bribe or intimidate witnesses or jurors."

The court also noted that it and the U.S. Supreme Court have never decided precisely the criteria for determining when jurors' names can be kept secret until the end of a trial.
Under the Jury Selection and Service Act, judges do have discretion to keep jurors' names secret "in any case where the interests of justice so require." But they must make a showing that their fears of events that could affect jurors' safety and impartiality be warranted.

"The judge expressed concern that jurors would be peppered with email and instant-message queries in this high-visibility case. These incoming messages may be viewed as harassment (the anticipation of which would make it more difficult to find people willing to serve as jurors) and certainly would tempt the jurors to engage in forbidden research and discussion," the 7th Circuit said in an opinion written by Chief Judge Frank Easterbrook.

But the court wisely requests some evidence from the judge that the Internet has adversely affected the conduct of jurors or members of the public.

"Have jurors in other publicized cases been pestered electronically (email, instant messaging, or phone calls), or by reporters camped out on their doorsteps?" the court asks. "If judges in other high visibility cases have told jurors to ignore any unsolicited email or text messages, have those instructions been obeyed? If not, do any practical alternatives to sequestration remain?"

The standard instructions to jurors that they refrain from reading, watching or listening to any accounts about the trial is sufficient and broad enough to cover Internet communications. And perhaps, as long time criminal defense attorney Patrick Tuite suggested, the jurors could be ordered to report to the judge if anyone tries to reach them on a social networking site or through email and instant messaging.
Tuite, who represented Albert Tocco - the defendant in the case that resulted in the paper bag sketch - even suggests checking jurors' phones if they've been contacted in order to find the identity of the person who tried to reach them.

It is a crime for members of the public or press to contact a sitting juror during a trial. These precautions could be sufficient.

Tuite noted that in the Tocco case, the decision to keep the jury truly anonymous had caused great controversy and was quite unusual at that time.

"We were fighting over the issue and I said 'are we going to be seeing their faces or are they going to have bags on their heads," Tuite said in an interview. There are things lawyers can discern by names and addresses and ethnicities, Tuite said. (It should be noted that in the Blagojevich case, the lawyers do know the identities of the jurors).

First Amendment advocates complain that it has become more common for judges to withhold the names of jurors, preventing the press from conducting its watchdog role by researching those who are sitting in judgment of a high profile defendant. Lawyers for the news organization noted that press investigations of jurors in the trial of former Gov. George Ryan had learned that jurors had lied on their questionnaires. Two jurors were replaced before deliberations.

"Judges are getting more and more protective of jurors. Basically, juror privacy in some
courtrooms trumps almost all other concerns about a constitutional trial," said Lucy Dalglish, the executive director of the Reporter's Committee for Freedom of the Press.

"It's appalling and it has to stop. Are there jerks who post things on the Internet that are inappropriate, ill-informed and stupid? You bet. We've got to get used to the Internet age. We are rapidly moving toward an anonymous jury system in the federal courts. This will make it impossible for journalists and others to engage in public oversight of the jury selection process."

The state rested its case this week and the defense is scheduled to begin presenting evidence on Monday. The hearing on the juror identification issue is scheduled for July 29.

Blagojevich Trial: Ex Gov Was All About The Benjamins

2010-07-01T23:21:00.000-05:00

Blagojevich Trial: Ex Gov Was All About The Benjamins

Mr. First Amendment, Blago: Fire the editorial board

2010-06-30T17:06:00.001-05:00

jhan63@gmail.com has forwarded the following Law Bulletin Article to you.
June 30, 2010 Volume: 156 Issue: 127

Blago to the Tribune: Fire the editorial board

By Janan E. Hanna 

"And our recommendation is fire all those [expletive] people. Get 'em the [expletive] out of there. And get us some editorial support." Rod R. Blagojevich (Nov. 4, 2008)

***

"So, did you tell [Deputy Governor Bob] Greenlee that, ah, [editorial writer John] McCormick's gonna get bounced at the Tribune?" Rod Blagojevich (Nov. 21, 2008)
                                                                                ***
"What's the deal? McCormick stays at the Tribune? I mean those layoffs were minor." Rod Blagojevich (Dec. 5, 2008)
                                                                                ***
Throughout his trial on federal corruption charges, Mr. First Amendment, a.k.a. Rod Blagojevich, has voiced respect and affection for the First Amendment in several contexts.

He argued that the entire case should be thrown out because the charges against him amount to the criminalization of speech.

When there was talk that he might be gagged from speaking to the media outside of the courtroom, Mr. First Amendment said he would fight for his right to speak. (U.S. District Judge James B. Zagel refused prosecutors' request that Blagojevich be gagged, implying that the defendant's remarks have been benign.)

The former governor has told reporters that "The First Amendment is sacrosanct in the United States"; that "One of the things we're fighting for is the First Amendment"; that the First Amendment is "the cornerstone of our democracy"; and that people have "laid down their lives" to protect our constitutional right to speak freely.

Evidently those rights don't extend to members of the fourth estate who speak critically of him.

Prosecutors last week played for the jury excerpts of wiretapped conversations that seriously undermine his constitutional grandstanding. The governor is charged with running the state as a racket, conspiring with aides to sell state contracts, jobs and grants for campaign cash. In most of the conversations regarding the Tribune, it was reporters' heads, not cash, that he sought.

He was talking with his chief of staff John Harris (now a government witness) and directing him to ask executives of the Chicago Tribune to fire the paper's editorial board — specifically John McCormick — if the company still wanted support from the state in structuring a sale of the Chicago Cubs and Wrigley Field.

In several conversations, Blagojevich tells Harris that this is a priority and asks him to speak specifically to Nils Larsen, the executive vice president-chief investment officer at Tribune Co.; Crane Kenney, who served as Tribune's general counsel before being named chairman of the Chicago Cubs in April 2008; and Tribune Co. owner Sam Zell, according to the tapes and the testimony of Harris.

And he had leverage. He told Harris to tell Tribune executives that unless they got rid of those writers who were critical of him, the governor would not be able to help the Cubs structure a deal through the Illinois Finance Authority (IFA), which is essentially a state bank that issues bonds and doles out loans. Blagojevich had sole authority to approve such a deal without getting permission from the General Assembly.

Here are some snippets of conversations the FBI recorded, from the official court transcripts, which show a desperate-seeming governor fighting for his reputation and career as the feds are closing in on him.

In response to an editorial advocating that a committee be appointed to look into impeaching Blagojevich, Harris and Blagojevich had a conversation about the Tribune and the Chicago Cubs IFA financing deal:
Nov. 4, 2008

Harris: Well, like I said, the Tribune wants you out of the way. Yeah.
Blagojevich: I think we have to have a conversation with Nils and Crane Kenney and maybe Sam Zell. And say, you know what, uh, uh, you know, the governor takes, gets his ass kicked from your [expletive] paper, wrongfully. They've got a [expletive] extreme agenda on 'em. We never complain. We go with the flow. Okay. But now you're in a position here where they're gonna be advocating an impeachment because the governor finds ways around the legislature to get things done like he's doing on this Cubs deal with the IFA.
Harris: Yeah, that's more of a Nils conversation not Sam Zell.
Blagojevich: Yeah. Right. And you know, and you know what, because this impeachment thing that your paper's pushing could very well be a cloud that hangs over our head and could actually be out there as I try to govern in the next session driven by your newspaper and by Madigan. We don't know if we can take a chance and do this IFA deal now. …And we got all these op-eds and, and then, so therefore we got to figure this out. And our recommendation is fire all those [expletive] people. Get 'em the [expletive] out of there. And get us some editorial support.
Harris: Right, we need air cover.
Blagojevich: Yeah. Get us some editorial support. So I want you to think through this. This is important. You follow me?
Harris: Got it.

Harris, who pleaded guilty to a corruption charge in exchange for his cooperation, testified that he did talk with Nils Larsen at the Tribune and the two talked about the Cubs-IFA deal. Then, Harris said, he turned the discussion to the editorial board and told Larsen that McCormick was particularly unfair to the governor. Harris said he asked Larsen to try to "tone down" the editorial board; that it could affect the IFA deal.

Nov. 11, 2008

Blagojevich: What about Nils and that follow-up with the Tribune and their editorial board's position on impeaching me and being negative and nasty?
Harris: I met with him yesterday. … And he says he talked to Sam and Sam got the message. He's very sensitive to … the issue. Uh, without getting too specific, there are certain corporate reorganizations and budget cuts coming and, uh, reading between the lines, he's goin' after that section.
Blagojevich: Oh, that's fantastic.
Harris: Now that doesn't mean, you know, he's not promising any turnaround right away. It's just a change in personnel and, but he understands that they have not been very balanced and that he does not ever acknowledge that he interferes in that operation.
Blagojevich: I understand but …[stuttering] he's goin' after that section. Oh, that's fantastic.

Harris did not ask Larsen to fire anyone, but he told Blagojevich that he had. Harris testified that he misled the governor in order to keep him from calling Zell directly, which Harris said would be a "terrible idea."

Nov. 21, 2008
Blagojevich: Good. So did you tell [Deputy Governor Bob] Greenlee that, ah, McCormick's gonna get bounced at the Tribune?

Harris had testified that Greenlee spoke with McCormick and found him to be very rude.

Harris: No. I told him that McCormick's in a bad mood. I says, I'm gonna check with Nils to see, maybe to see whether or not it's part of that message about the cuts on the ed board and maybe McC-, I, I had singled out McCormick as somebody who is, uh, the most biased and unfair.
Blagojevich: You, to Nils you did? Yeah, that'd be great. That guy's a bad guy, man. … Nils is on top of this, right?
Harris: Well, like I said, they, that, they, that's all he said was they're lookin' to making some changes
Blagojevich: Your point was, this guy's advocating I get impeached 'cause I do things around the legislature, you made that point to him, right?
Blagojevich: And that's precisely what we're doing on Wrigley Field?
Finally, just four days before Blagojevich was arrested, the Tribune reported that a close adviser had been surreptitiously recording conversations with the governor.

Dec. 6, 2008

Blagojevich: What's the deal? So McCormick stays at the Tribune, huh?
Harris: Uh, well, we haven't heard that he's gone, so.
Blagojevich: I mean those layoffs were minor.
Harris: Well, I know they got a lot to do.
Blagojevich: OK, at some point we should talk to Nils again, right? … I mean, I might have a lawsuit on this if this isn't true. What d'ya think?
Harris: So what if you're on a recording. You could be ordering a cheese and mushroom pizza.
Blagojevich: Yeah, you're right. But that's not true though. And they're creating this image like I'm a big crook.
The trial is now in its fourth week and prosecutors are still presenting evidence. Ultimately, jurors will decide whether Mr. First Amendment was crooked or whether he was all talk.

To view more transcripts of the recorded conversations, visit: www.justice.gov/usao/iln/hot/us_v_blagojevich.html.
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.

2010-06-25T09:29:00.012-05:00

Blagojevich Tapes Played In Court: Ex Gov Irked By 'Thankful' Message From Obama Aide ‎

Huffington Post | Janan Hanna First Posted: 06-24-10

Sounding at times desperate and dispirited, and at other times enthusiastic and grandiose, Rod Blagojevich was captured on tape strategizing about how he could benefit politically and financially by choosing a candidate to replace the Senate seat vacated by President Obama.

The prosecution continued Thursday to play recorded conversations for the jury in the former governor's federal corruption trial. Most of the calls are between Blagojevich and his then chief of staff, John Harris, and take place in November, and early December 2008 - soon before both men were arrested. Harris pleaded guilty to a corruption charge and is a cooperating witness.

"I need to find a way to get financial mobility," Blagojevich said in a conversation with Harris and Fred Yang, a prominent political pollster who did some work for Obama. At the same time, he wanted a position on a board or at a not for profit organization that would be funded by people like Warren Buffet and other "friends" of Obama, according to the tapes.

His wish list was long: He talked about appointing himself to the Senate seat and getting his wife, Patti, a job as a lobbyist in Washington; getting a job as the head of a union campaign organization; being appointed to a cabinet position, and, establishing an issues-oriented foundation that would have more than $10, $15 or $20 million --money that Obama's billionaire friends would contribute, Harris testified. One thing was clear; he did not want to serve out the remaining two years of his term as governor.

He was clearly anxious about his future financial security, saying in one recording: "How am I gonna send my F****** kid to college," and in another conversation: "These three criterion in his order; our legal situation, our personal situation and my political situation."

Blagojevich's salary as governor was $170,000.

When it came to the Senate seat, Blagojevich seemed most interested in appointing Valerie Jarrett, now a White House aide, in the belief that Obama would reward him for the choice. Obama did, in fact send a message through Rahm Emanuel who told a Blagojevich aide that the president elect would like Jarrett to be his pick.
Story continues below

Harris testified he relayed the message in a recorded call on Nov. 11, 2008, telling Blagojevich that the "president elect would be very happy if you appointed Valerie Jarrett to the Senate...he'd be thankful and appreciative," Harris told the governor, according to the recorded conversation.

An angry Blagojevich responded: "They're not willing to give me anything except appreciation. F*** them. You know what I mean?"

But a day later, Emanuel was sending a different message. In a recorded call to Blagojevich from Harris on Nov. 12, 2008, Harris relayed the message: "'Pass on three things to Rod and I'm available to speak to him if he'd like to. Valerie Jarrett's goin' to the White House," Harris said. "He gave us four names that the president would find acceptable."

Blagojevich asks "Who are they?"

Harris responds "Not in any rank order...[Congressman] Jesse Jackson Jr., [Congresswoman] Jan Schakowsky, Tammy Duckworth [Assistant Secretary in the United States Department of Veterans Affairs]...Dan Hynes [Illinois Comptroller]."

Emanuel did not express who the president would oppose as a candidate, but Harris said he believed implicit in the message was that former state Senate President Emil Jones would be disfavored.

Later in the conversation, Harris says: "They're clearly diluting the value of the ask...meaning they're, they're, they're reducing its importance. When they give you two whites and black and an Asian. It sounds like the only thing they really don't want is Emil."

In another conversation, Blagojevich expressed his opinions about Jesse Jackson Jr., whom he thought of appointing believing it would anger the president elect and the Senate leadership. "Jesse Jackson, Jr.; it's a repugnant thought to me. I think he's a bad guy. I don't like him. I don't trust him," Blagojevich said.

As Harris explained from the witness stand, Blagojevich was looking for opportunities to "leverage the appointment of a senator to get something for himself."

That is one of the charges that comprise the 24-count indictment against Blagojevich, whom prosecutors allege put Illinois government up for sale, doling out appointments, contracts and favors to those who contributed to his campaign fund.

He tried to get Chicago Sun-Times columnist Michael Sneed to plant a rumor that he was considering appointing Jesse Jackson, Jr., thinking that Obama "might be more motivated to accommodate the governor's requests" if he tricks him into thinking Jackson is his first choice, Harris testified.

He also bandied about the idea of appointing several other individuals, including one of his deputy governors, Luanner Peters, and suggested he could take the seat for himself. But he seemed most interested in Jones, whom he said would look after his interests in Washington. In one conversation, he suggests Harris ask Jones if he'd be willing to transfer money from his campaign coffers to Blagojevich's.

Testimony Thursday also revealed that Blagojevich was extremely angry at the Chicago Tribune editorial board for publishing articles critical of the governor and that he repeatedly directed Harris to talk to a consultant to Sam Zell, the owner of the paper.

Harris testified that he did discuss the editorials with the consultant, Nils Larsen. Harris allegedly discussed possible assistance the state could give the Tribune Co. in its planned sale of the Chicago Cubs and Wrigley Field, and also asked Larsen to try to "tone down" the editorial board--telling him it could affect the state's willingness to help with the Cubs deal.

"Nils explained to me the financial conditions were strained...that they'd be performing layoffs and other restructuring," Harris testified. He did not ask Larsen to fire anyone, but he later led Blagojevich to believe he had. His objective: trying to keep Blagojevich from calling Zell himself, he testified.

Four days before Blagojevich's Dec. 9, 2008 arrest, as the feds were closing in on him, the Chicago Tribune reported that John Wyma, a lobbyist and close advisor to Blagojevich, had been wearing a wire for the FBI. Wyma's lawyer had apparently called Blagojevich's chief counsel, William Quinlan, and told him the story was false, Harris testified. "You believe Wyma's lawyer," Blagojevich asks Harris during a recorded call on Dec. 5. Harris testified that he told Blagojevich "I had no reason to believe John Wyma was wearing a recording device in any conversations I had with him."

Janan Hanna is a licensed attorney, a lecturer at Northwestern University Medill School of Journalism and a freelance writer.

2010-06-22T11:05:00.003-05:00

jhan63@gmail.com has forwarded the following Law Bulletin Article to you.

June 17, 2010 Volume: 156 Issue: 118
Is using Citizens United as a defense a good idea?

By Janan E. Hanna 
The last time I read the First Amendment, I didn't see anything about bribery and extortion, wire and mail fraud, conspiracy, racketeering, or lying in a criminal investigation.

Those are among the crimes Rod R. Blagojevich is facing in his federal corruption trial. But in a last-minute motion filed on the first day of trial, Blagojevich's lawyers argued that the entire prosecution was a violation of the impeached governor's First Amendment right to speak freely.

Creative? Maybe. Desperate? More likely. Particularly when you consider that the motion cites the U.S. Supreme Court's holding in Citizens United v. Federal Election Commission (558 U.S. 50 (2010)) to bolster the defense argument.
Huh? Citizens United?

You might recall that that case, decided earlier this year, opened the door for large corporations to give unlimited funds for political advertising. The majority held that corporations are "persons" under the law and, as such, are free to dole out as much campaign cash as they'd like to political organizations that favor a particular federal candidate, provided they disclose how much they give. And, yes, its ruling was grounded in the First Amendment.

But it did not say that individual candidates can extort or attempt to extort that cash in exchange for favors, or enter into the sorts of quid pro quo deals in which Blagojevich is alleged to have engaged. Nothing about that decision speaks to the conduct in which Blagojevich is alleged to have participated — seeking campaign cash in exchange for contracts, jobs and a U.S. Senate seat.

And the argument doesn't even square with the defense's theory of the case — that Blagojevich was a bit of a dunce surrounded by lawyers, fundraisers and lobbyists far more sophisticated who were calling the shots, maneuvering behind the scenes without his knowledge, to bulk up his campaign fund. It's as if he's saying, "Well, I might've said stuff that sounded like I was involved in extortion or bribery, but really, it was just talk."

Maybe he's talking about that conversation he had in December 2008, just days before his arrest, when, according to the prosecution's evidentiary proffer, he talks about getting something from "candidate A" in exchange for appointing candidate A to fill the U.S. Senate seat vacated by President Obama:

"Blagojevich told Robert Blagojevich [a co-defendant] to tell Individual P that while Senate Candidate A being named to the Senate seat was:
'possible … some stuff has to start happening now… right now. And we gotta see it. You understand?

'now you gotta be careful how you express that. And assume everyone's listening, the whole world's listening. But if there's tangible political support like you've said, start showing us now."

Free speech? Sure. But one could also easily infer from the words that the governor had a quid pro quo state of mind.

"It's a complete non sequitur to say that because people have the right to spend money on political campaigns he therefore has a First Amendment right to say what he said," said Martin H. Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law. "He wasn't spending any money.
"Citizens United didn't in any way say that quid pro quos were protected by the First Amendment."

Blagojevich is, obviously, innocent until proven guilty. But in their opening statement and through their first witnesses, prosecutors have painted a portrait of a man who targeted beneficiaries of state action for hefty campaign contributions or commitments to hold fundraisers. His goal, according to the prosecutor's opening statement, was to raise as much campaign cash as possible before the start of 2009, when an ethics law would be enacted barring certain contributions from entities with state contracts.

Apart from the Senate seat, the state has started presenting evidence that shows that Blagojevich:

•wanted something from road builders in exchange for dangling $5 billion in additional tollway funds that he alone could authorize;

•wanted Rahm Emanuel (now Obama's chief of staff) to hold a fundraiser for him in exchange for a grant to a new school that Emanuel supported in his congressional district;

•stalled signing a piece of legislation favorable to the horse racing industry while continuously asking through a lobbyist and close friend about a $100,000 contribution from a race track owner;

•lost his temper when he was told that an executive at Children's Memorial Hospital — which was slated to receive a $10 million grant — hadn't returned Robert Blagojevich's fundraising calls. "Screw these guys," Rod Blagojevich said, according to the testimony of Alonzo "Lon" Monk. He then allegedly called his deputy governor to ask about the status of the grant and said, in an exasperated tone, "'Okay, fine. Don't do anything with it until I talk to you,'" Monk said;

•and his associates received a $500,000 kickback from the firm that was given investment control of $10 billion the state had borrowed to shore up the pension system;

•wanted a good job or a cabinet post in exchange for naming a particular Senate candidate.

In its motion to dismiss the case on First Amendment grounds, the defense attorneys write: "In this case, the defendant was engaged in political speech and expression. The government alleges that the political process in which he was engaged was criminal. This is a violation of the defendant's rights of freedom of speech and expression afforded him under the United States Constitution."

"… In Citizens United, the Supreme Court acknowledged the absolute right of free political speech and employed the strict scrutiny standard of review — political speech must prevail against all laws that suppress it, whether by design or inadvertence. Laws that burden political speech are subject to strict scrutiny."

There is a distinction between a political contribution given with the implicit understanding that the receiver is generally supportive of the contributor's agenda — say on environmental issues, gun issues, abortion — and an out-and-out declaration by a contributor that "I'll give you some money only if you promise to do X."

It seems the defense's argument is that Blagojevich, the receiver, was simply engaged in politics as usual and that none of it rose to the level of an exchange of favors for cash.

"Other than just the aura of Citizens … the court has recognized that money can play a role in political decision making. That's right," said Redish, who teaches First Amendment law. "Corporations can spend on behalf of candidates that they think will take positions in office that are sympathetic to their point of view.

"But it's painting with too broad a brush to suggest that simply because money can be used in the political process we have swept away all laws against bribery and extortion."

The motion is quite a stretch. I suspect it is a prelude to the summary judgment motion that Blagojevich will file at the conclusion of the state's case.

"Maybe the strategy is this: they're raising the stakes for the government's proof. They're saying, 'If you can't prove that I actually engaged in a quid pro quo and I may have been smart enough to insulate myself from that, then I have a First Amendment defense,'" Redish said.

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.

Political operative says Blagojevich tried to shake down Rahm Emanuel

2010-06-22T00:08:00.001-05:00

By Janan Hanna

A prosecution witness painted a portrait of former Gov. Rod Blagojevich as someone who rarely went to the office, was oftentimes hard to reach and who sometimes took no part in deciding whether legislation should be signed or vetoed.

That task was often left to then Deputy Gov. Bradley Tusk, who testified Monday at Blagojevich’s federal corruption trial. But Tusk, a powerful political operative who served as deputy governor during Blagojevich’s first term, testified about one occasion where he was able to reach the governor and did not like what heard coming out of his boss’s mouth.

Tusk was inquiring about a $2 million grant that had been approved for a school and teaching academy in former Congressman Rahm Emanuel’s district. The school, counting on the grant money, had begun building an athletic field but was unable to pay contractors because it had not been given the approved funds. Emanuel and others began pressuring Tusk who called Blagojevich late in the summer of 2006 to talk about the grant. “He [Blagojevich] said before the money could be released he wanted Rahm’s brother to hold a fundraiser,” Tusk testified. Emanuel’s brother is a Hollywood agent.

Tusk said he believed Blagojevich was saying there would be no grant if there was no fundraiser and that Blagojevich wanted “that message delivered to Rahm Emanuel.”

“I believed that doing that [asking Emanuel’s brother to hold a fundraiser] would be both illegal and unethical,” Tusk testified.

Tusk refused deliver the message and instead called Blagojevich aide John Wyma and the governor’s general counsel and chief ethics advisor, William J. Quinlan, to warn them of Blagojevich’s request and advise them not to let him carry out his fundraising request in relation to the school grant. To Quinlan in particular, Tusk said: “You need to get your client under control.”

Ultimately, the funds were doled out, under Blagojevich’s directive, in dribs and drabs, as invoices from contractors doing work on the field were presented, according to the testimony of Blagojevich’s former chief of staff, John Harris, who also testified Monday.

Both Tusk and Harris testified that the payment procedure was unusual and that typically grants of that size were doled out in a lump sum. “…I did not experience that process again” with regards to grants, Harris testified.

Tusk, 36, now a private political consultant living in New York, worked as a special assistant to New York Mayor Michael Bloomberg before coming to Chicago in 2003 to be Blagojevich’s deputy governor in charge of budgetary, legislative, communications and policy issues. He headed Bloomberg’s 2009 reelection campaign.

Tusk was one of the few prosecution witnesses so far who was not indicted for any criminal wrongdoing and was not testifying in exchange for a plea agreement. Tusk testified that the $2 million grant to the Academy For Urban School Leadership, 3400 N. Austin Ave., was considered a small grant by state standards.

The school grant issue was the latest in a series of allegations by the prosecution that Blagojevich was allegedly in a frenzy to raise campaign cash and that he allegedly conspired with aids and fundraisers to extort or attempt to extort individuals and entities seeking to do business with the state.

Later Monday, testimony from Harris related to Blagojevich’s efforts to get a job for his wife, Patti Blagojevich.

Harris was arrested along with Blagojevich on Dec. 9, 2008 and pleaded guilty to conspiracy to solicit a bribe. He also agreed to cooperate with federal prosecutors and testify against Blagojevich.

He testified that Blagojevich asked Harris in 2008 to inquire about getting Patti a state job. Ultimately, Blagojevich suggested to Harris that he try to get her a job with an investment firm that does business with the state because Patti had passed the Series 7 exam, which qualified her to trade in securities.

Harris testified that he set up meetings with an executive at Citibank and with John Rogers, the chairman and chief executive officer of Ariel Capital Management, but that neither offered her a job. This angered Blagojevich, Harris testified.

“He was quite agitated that Patti was not having any success,” Harris testified. “He told me to make sure Citibank doesn’t get anymore state work and make sure John Rogers doesn’t get anymore state work.”

This wasn’t possible with regards to Rogers since his firm invested state pension funds, which was within the purview of the state pension board. “He shrugged his shoulders and said ‘there’s nothing we can do?’ And I said there’s nothing we can do,” Harris testified.

The direct examination of Harris is expected to continue throughout the week, prosecutors told Judge James Zagel.

Janan Hanna is a licensed attorney, a lecturer at Northwestern University Medill School of Journalism and a freelance writer.