[Collected notes from posts on Blagojevich’s legal strategy.]
Can Blagojevich win?
I have sat in a courtroom as a trial convened where the public and press was convinced that it was an open-and-shut slam dunk of a case, and that we were gathered in the courtroom to watch the defendant get what’s coming to him. And even now, five years after that defendant was acquitted, people are still convinced of his guilt and still believe that justice was not adequately served in the federal courtroom, in Alabama. So now—barring a continuance—we are just three months away from the trial of Rod Blagojevich, and the people and the media are convinced it is an open-and-shut slam dunk of a case. But is it? Although it is unlikely that Blagojevich can completely scrub his name from the ledger of corrupt politicians—at least not in terms of public perception—can he still win a legal victory? If he can’t convince the press and fed-up population of his innocence, can he convince the twelve people who eventually will spend their summer sitting in the jury box?
In the early going skirmishes, as pointed out in the previous post, things are not going well for the Blagojevich team. And as they press forward with the play-all-the-tapes ploy (now asking for an oral argument before Judge Zagel) they are so far leaving other more accessible tools on the table. But the biggest problem the team faces is not in the courtroom at all, it is not in the submitting of motions or haggling over the rules of evidence or getting a tip-off of the prosecution’s strategy. The biggest problem is with the guy whose name is on the indictment, Mr. Blagojevich himself. Not only is the defense team handicapped by the judge strictly capping the attorney’s financial arrangements with the defendant, but they also have to contend with a guy who truly is evolving into a client from hell.
So how can Blagojevich win? What could their defense be? My legal consultants have told me that the only real shot they have is for the defense to convince the jury that Blagojevich was operating within the rough and tumble world of politics, and that he had no intent to commit a crime. They will need to show that within the context of the political arena, Blagojevich was just playing hard-ball politics, and was not making his moves solely for personal gain. But there is a big problem to this approach, maybe two of them. The general public is already primed and inclined to believe that politicians, by nature, are crooked and that politics in general is a shady business at best. So whenever a politician gets hauled into court—no matter how bogus the charges might be or how thin the evidence—the public, even trying to be as impartial as it can, already has a general assumption of guilt. The second problem Blagojevich might have comes out of the nature of the indictment. The selling of the Senate seat and strong-arming of the Chicago Tribune might be easily subject to this hard-ball politics defense (for instance that Obama’s seat was really a “valuable thing” in a political sense—which it was—with the story being spun that this didn’t necessarily mean a financial or personal gain) but the parts of the case that deal with him lining up positions of money and influence that would kick in after he left office will be much harder to explain from a political perspective. The RICO portion of the indictment can also be problematic for the prosecution because this configuration means that according to the government the entire Blagojevich administration—the entire Illinois government—was run as a criminal enterprise. By pointing out the various pieces of the administration that were operating for the good of the constituents or was functioning well during the Blagojevich administration, the defense could possibly undermine this piece of the indictment.
So how does the defense work the angle that Blagojevich was operating within the political arena, and without the intention of committing a crime? Their only shot will be to show that the government, including the FBI and US Attorneys are partisans on the political battlefield, and to somehow show that the FBI willingly or unwittingly received information from Blagojevich’s opponents which they used and perhaps distorted to bring evidence in front of the jury. They will also need to set up a dual parallel prong that works the public angle. I spoke with Charles Russell, who is a PR operative that has worked on managing negative publicity associated with several high profile cases, and Mr. Russell said that the key for the defense will be to incorporate the social and political realities of Chicago into their presentation, and if Blagojevich’s legal teams tries to simply out-lawyer the prosecutors in the courtroom, they will surely lose. This area of pre-trial PR gets into the nuts-and-bolts and sometimes unseemly process of jury selection, but if his lawyers are able to test certain themes to see what resonates well with the public, and then they carefully select the jury in accordance with these themes, then they might have a chance. He also pointed out that press coverage, in these types of high profile trials, is important, but it is not as important as some media-types might have us believe. Jurors are not often big consumers of news, especially of the print media. Because of this factor, there can sometimes be a gulf between what the media presents as an open-an-shut case and the actual perception of the people on the street, the people who may eventually wind up on the jury. So there might be a glimmer of hope here, but there’s a catch, and it’s a big one that is growing bigger with ever passing week and month. In order for this to work, Blagojevich would have to testify.
Now as if there wasn’t enough evidence from cooperating witnesses and a mountain of tapes arrayed against them, they really have a problem and the client from hell comes into focus. Blagojevich has been talking to everyone and anyone who will listen. He’s been on talk shows, radio shows, has a website, is on Facebook and will soon be in the reality show Celebrity Apprentice. He is making it easy for the prosecutors because all they will have to do is prepare snippets of tape from his many TV and radio appearances, and then look for anything that is inconsistent. One strategy for the prosecution, I’m told, would be to have a single member of their team tasked with handling the cross-examination of Blagojevich, and that person will be armed and versed in the aforementioned tapes. The prosecutor will then ask him many questions about the various things he has said, even about things where he might have misspoke. Whenever there is a contradiction and he denies saying something, then the snippet will be played to the court, and he’ll be cast as a liar. This will be unrecoverable. It will sink him. All they need is a single mistake—a few mistakes would be even better but they only need one—and they can accurately say that he can’t keep his story straight. The more he talks during this pre-trial phase, the more opportunities he is handing the government prosecutors. The prospects mushroom when all of the verbiage is crosschecked against statements made by cooperating witnesses, the defendant talking on the 500+ hours of tape, and any other extant statements he might have made during his time as an elected official of the state of Illinois.
So as it stands today, three months before trial, there may be a one-shot opportunity for Blagojevich to mount a defense, but he has been actively torpedoing his own chances. If his own defense can rein him in, his legal team may have at least a shot at mounting a credible defense, but his chances may be growing dim as we speak. So let’s settle in now and enjoy Celebrity Apprentice, debuting on NBC, March 14th. We can be pretty sure the DOJ will.
The Blagojevich PR machine revisited
Rod Blagojevich is not the first indicted person facing serious criminal charges to loudly proclaim his innocence nor is he the first politician to claim that he was caught up in the machinations of overly zealous prosecutors. His rhetoric is nothing new. I once went out campaigning with an indicted politician who was stumping for primary votes on the weekend while undergoing a multi-count corruption trial during the week. In this respect, Blagojevich is only acting his part in the unscripted ritual of the media-infused world of public accusations that will end in the more tedious languid environment of oak-paneled courtrooms.
It is not the steady hum of his PR machine that is new, nor is it his “I didn’t do it” mantra, but it is the sheer excess that makes Blagojevich’s pretrial stategy unique. Against conventional wisdom, but perhaps not vigorously discouraged by his defense team, Blagojevich’s taking-his-fight-to-the-people goes way beyond trying to influence or manipulate a local jury pool. Any observer of the goings on in Chicago would be hard-pressed to come up with a model that accurately characterizes what this particular indicted politician is doing. So why would the defense vehemently fight for Rod Blagojevich’s right to be on Celebrity Apprentice when conventional wisdom would say they would welcome their client shutting his mouth, no matter who is doing the shutting. At the same time, the prosecution has worried that his over-the-top PR campaign would indeed taint the jury. And they have a right to worry. If Blagojevich successfully converts himself into a character, a gutsy man of the people going up against the power and resources of Big Government, it could resonate with a fed up public that has sometimes shown its willingness to hitch its frustration and anger to populist characters. So it might be madness, but perhaps in the case of Rod Blagojevich, madness is a strategy in itself.
On the morning after the third episode of Celebrity Apprentice aired, the headline was that Blagojevich is such a buffoon that he couldn’t even handle the basics of operating a computer. Daryl Strawberry, another member of his ‘RockSolid’ team on the show, wondered aloud for the cameras how Blagojevich became a successful politician. He said, “You don’t just fall up there” to be governor. So in the morning, Blagojevich’s computer skills—along with an unfortunate sexual reference—were fodder for bloggers, commentators, comedians and news-of-the-weird fans. But while we were busy guffawing at the fallen governor, is it possible that we were laughing at a shrewd not-so-funny strategy. In a couple of months, Blagojevich’s trial will commence, where he will be facing a twenty-four count indictment including two RICO counts. To prove the RICO portion, the government is going to have to prove that Rod Blagojevich was the master mind of a criminal enterprise. Now put yourself on the jury for a moment, overlay Blagojevich fumbling to make sense out of one of these new-fangled computer things, and ask yourself if—based on this one piece of information being fed to us, the people of the jury, in the veritable information-vacuum of a courtroom—do you really think that Blagojevich, that bumbling guy who couldn’t make sense out of a computer on a silly reality show, could be the master mind of anything? Could these on-camera antics actually have been the result of a strategy in the making.
To digress for a moment and to be completely fair, one problem that charismatic people—those who have occupied positions of power or leadership—often have is that they are unwilling to give up on their well-crafted image, even if it means saving their livelihood and liberty. Corporate CEOs often have to wrestle with their attorneys over employing the “know-nothing” defense because even in a courtroom, they vainly cling to their well-crafted image, and will do (almost) anything to prevent the public from seeing them as something other than the product of a PR machine. But some reports from Chicago indicate that Blagojevich may indeed try anything, be anything, become anything, if it means getting to the other side of this thing.
In another snippet gleaned from Blagojevich’s appearances on Celebrity Apprentice, he is shown on the phone, having a conversation with a nameless party, presumably back in Chicago. On that call, he is swearing a lot—as he is on several other occasions in the three shows he was on—and he was saying something about getting someone to “corroborate” something. That’s the word he used in the midst of his profanity laced conversation. Now we’re back on the jury, watching the two legal teams trying to spin the story of what happened during the Blagojevich administration. The prosecution might make the case that his swearing was an intimidation tactic that went beyond hard ball politics. But the defense has only to play this tape to demonstrate that swearing was standard operating procedure for Blagojevich, and the language he used on the tape was nothing out of the ordinary. That’s going to be the mantra of the trial, that Blagojevich was conducting business in the rough and tumble world of politics, and that he never did anything that—within proper context—had him intentionally committing crimes. Some words, like for instance, the word “corroborate” could come up on the tapes as well, and the defense could again point to him using the word in what appears to be a casual exchange. Words like this, within the ever-widened context of the playing field—from his radio show, his many personal appearances, his role on Celebrity Apprentice—might take on a life of their own, and his attorneys may use them to pick apart the tapes. Will it be enough to explain away the considerable evidence arrayed against him? It’s not open-and-shut, but it could. If the motivations behind the cooperating witnesses are successfully explored and exploited, and if context undermines the contributions of the unindicted co-conspirators, it could come down to the tapes. And Blagojevich has been plastering the world with a veneer of context that could end up leveling the playing field.
One more thing from the show: Blagojevich’s strange sexual reference. When Blagojevich’s team quickly picked a team leader, and the Governor thought the decision was done too hastily, without deliberation, he said that it was like “premature ejaculation,” and then he went on a rambling, mumbled diatribe about when he was governor, and how they used to negotiate and plan to arrive at a more collective decision. This might have just been an unfortunate off-the-cuff reference that made good copy for a reality show, but it also could have been a wry reference to a a future defense strategy. It is possible that Blagojevich’s defense team will attempt to portray the government as so eager to get Blagojevich that they fired off all their guns before he actually committed any crimes, and they’ll further say that if they…um…relaxed, and took it more slowly, it would have become clear that Blagojevich was not running a corrupt administration. So like an over-eager teenager, according to a Blagojevich spin, the government prematurely ejaculated, therefore revealing their over-zealous intentions.
The Strategic Value of a Continuance
So why is the continuance—the battle over time—so important?
For the Blagojevich team, it is a line in the sand, the source of a slew motions that employ a variety of legal techniques to push the trial date back. For the prosecution, it has become an equally dire issue because it would seem that with the Supreme Court ruling imminent, a just and cautious DOJ might welcome a delay in order to make sure that the effort and expense of a trial is not washed away on appeal if the appellate court finds merit in the argument that a defendant must know the basic accusations that he is charged with. Underline basic because the honest services portion of the indictment is not as extraneous as the prosecution has been saying via their response motions.
So what’s in it for both sides?
For the prosecution, even if the evidence piled up against Blagojevich remains the same, and even with all of the tape recorded conversations that are supposed to prove he was being more than a hard-nosed politician, a substantial portion of the indictment is wrapped up in the honest services statute that will soon be decided by the Supreme Court. The code is mentioned in 13 of the 24 counts and it may actually be the glue that holds the case together, because just as context is turning out to be a very meaningful part of the defense, so is it likewise a bulwark of the prosecution’s case. With a string of challenge-worthy witnesses, a small mountain of audio evidence of questionable quality which is rapidly being buttressed by context supplied by the chatty Blagojevich, and an investigation that more often than not swooped in before the crimes were actually committed (or in some cases the crimes were even more ethereal since Blagojevich’s aides protected their boss by not carrying out his alleged criminal intentions), the prosecution needs to portray the totality of Blagojevich’s administration as a criminal enterprise, or as an organization that was designed more around personal benefit than a venture that would ultimately benefit the state of Illinois. It is this—the honest services portion—that is the glue that sticks these otherwise rather shaky individual crimes together, and without being able to present this total vision at trial, the prosecution could be in trouble. So the strategy, for the prosecution, is not to worry as much about caution and justice—and perhaps fairness—as making sure the case is argued the way they want to argue it before some charges fall out. If it works, it might not be a bad trick because if they can dig in their heels, prevent the continuance and get the conviction, it might still pass appellate muster because after all, as they have said all along—and Zagel has agreed—he would have simply faced less charges supported by the same evidence.
Besides having to overcome this fundamental problem with fairness, for the defense, it would give them another couple of months to digest documents and tapes, and most importantly, to send the defendant out on his many forays to establish context. Blagojevich, who’s approval rating had dipped to miniscule proportions before the feds came in, would also use the time to continue the project of reinventing himself as a fighter for the little guy and a champion against the power of Big Government, which are both themes that are topical and play well in the current social and political climate.
Can Blagojevich win?
I have sat in a courtroom as a trial convened where the public and press was convinced that it was an open-and-shut slam dunk of a case, and that we were gathered in the courtroom to watch the defendant get what’s coming to him. And even now, five years after that defendant was acquitted, people are still convinced of his guilt and still believe that justice was not adequately served in the federal courtroom, in Alabama. So now—barring a continuance—we are just three months away from the trial of Rod Blagojevich, and the people and the media are convinced it is an open-and-shut slam dunk of a case. But is it? Although it is unlikely that Blagojevich can completely scrub his name from the ledger of corrupt politicians—at least not in terms of public perception—can he still win a legal victory? If he can’t convince the press and fed-up population of his innocence, can he convince the twelve people who eventually will spend their summer sitting in the jury box?
In the early going skirmishes, as pointed out in the previous post, things are not going well for the Blagojevich team. And as they press forward with the play-all-the-tapes ploy (now asking for an oral argument before Judge Zagel) they are so far leaving other more accessible tools on the table. But the biggest problem the team faces is not in the courtroom at all, it is not in the submitting of motions or haggling over the rules of evidence or getting a tip-off of the prosecution’s strategy. The biggest problem is with the guy whose name is on the indictment, Mr. Blagojevich himself. Not only is the defense team handicapped by the judge strictly capping the attorney’s financial arrangements with the defendant, but they also have to contend with a guy who truly is evolving into a client from hell.
So how can Blagojevich win? What could their defense be? My legal consultants have told me that the only real shot they have is for the defense to convince the jury that Blagojevich was operating within the rough and tumble world of politics, and that he had no intent to commit a crime. They will need to show that within the context of the political arena, Blagojevich was just playing hard-ball politics, and was not making his moves solely for personal gain. But there is a big problem to this approach, maybe two of them. The general public is already primed and inclined to believe that politicians, by nature, are crooked and that politics in general is a shady business at best. So whenever a politician gets hauled into court—no matter how bogus the charges might be or how thin the evidence—the public, even trying to be as impartial as it can, already has a general assumption of guilt. The second problem Blagojevich might have comes out of the nature of the indictment. The selling of the Senate seat and strong-arming of the Chicago Tribune might be easily subject to this hard-ball politics defense (for instance that Obama’s seat was really a “valuable thing” in a political sense—which it was—with the story being spun that this didn’t necessarily mean a financial or personal gain) but the parts of the case that deal with him lining up positions of money and influence that would kick in after he left office will be much harder to explain from a political perspective. The RICO portion of the indictment can also be problematic for the prosecution because this configuration means that according to the government the entire Blagojevich administration—the entire Illinois government—was run as a criminal enterprise. By pointing out the various pieces of the administration that were operating for the good of the constituents or was functioning well during the Blagojevich administration, the defense could possibly undermine this piece of the indictment.
So how does the defense work the angle that Blagojevich was operating within the political arena, and without the intention of committing a crime? Their only shot will be to show that the government, including the FBI and US Attorneys are partisans on the political battlefield, and to somehow show that the FBI willingly or unwittingly received information from Blagojevich’s opponents which they used and perhaps distorted to bring evidence in front of the jury. They will also need to set up a dual parallel prong that works the public angle. I spoke with Charles Russell, who is a PR operative that has worked on managing negative publicity associated with several high profile cases, and Mr. Russell said that the key for the defense will be to incorporate the social and political realities of Chicago into their presentation, and if Blagojevich’s legal teams tries to simply out-lawyer the prosecutors in the courtroom, they will surely lose. This area of pre-trial PR gets into the nuts-and-bolts and sometimes unseemly process of jury selection, but if his lawyers are able to test certain themes to see what resonates well with the public, and then they carefully select the jury in accordance with these themes, then they might have a chance. He also pointed out that press coverage, in these types of high profile trials, is important, but it is not as important as some media-types might have us believe. Jurors are not often big consumers of news, especially of the print media. Because of this factor, there can sometimes be a gulf between what the media presents as an open-an-shut case and the actual perception of the people on the street, the people who may eventually wind up on the jury. So there might be a glimmer of hope here, but there’s a catch, and it’s a big one that is growing bigger with ever passing week and month. In order for this to work, Blagojevich would have to testify.
Now as if there wasn’t enough evidence from cooperating witnesses and a mountain of tapes arrayed against them, they really have a problem and the client from hell comes into focus. Blagojevich has been talking to everyone and anyone who will listen. He’s been on talk shows, radio shows, has a website, is on Facebook and will soon be in the reality show Celebrity Apprentice. He is making it easy for the prosecutors because all they will have to do is prepare snippets of tape from his many TV and radio appearances, and then look for anything that is inconsistent. One strategy for the prosecution, I’m told, would be to have a single member of their team tasked with handling the cross-examination of Blagojevich, and that person will be armed and versed in the aforementioned tapes. The prosecutor will then ask him many questions about the various things he has said, even about things where he might have misspoke. Whenever there is a contradiction and he denies saying something, then the snippet will be played to the court, and he’ll be cast as a liar. This will be unrecoverable. It will sink him. All they need is a single mistake—a few mistakes would be even better but they only need one—and they can accurately say that he can’t keep his story straight. The more he talks during this pre-trial phase, the more opportunities he is handing the government prosecutors. The prospects mushroom when all of the verbiage is crosschecked against statements made by cooperating witnesses, the defendant talking on the 500+ hours of tape, and any other extant statements he might have made during his time as an elected official of the state of Illinois.
So as it stands today, three months before trial, there may be a one-shot opportunity for Blagojevich to mount a defense, but he has been actively torpedoing his own chances. If his own defense can rein him in, his legal team may have at least a shot at mounting a credible defense, but his chances may be growing dim as we speak. So let’s settle in now and enjoy Celebrity Apprentice, debuting on NBC, March 14th. We can be pretty sure the DOJ will.
The Blagojevich PR machine revisited
Rod Blagojevich is not the first indicted person facing serious criminal charges to loudly proclaim his innocence nor is he the first politician to claim that he was caught up in the machinations of overly zealous prosecutors. His rhetoric is nothing new. I once went out campaigning with an indicted politician who was stumping for primary votes on the weekend while undergoing a multi-count corruption trial during the week. In this respect, Blagojevich is only acting his part in the unscripted ritual of the media-infused world of public accusations that will end in the more tedious languid environment of oak-paneled courtrooms.
It is not the steady hum of his PR machine that is new, nor is it his “I didn’t do it” mantra, but it is the sheer excess that makes Blagojevich’s pretrial stategy unique. Against conventional wisdom, but perhaps not vigorously discouraged by his defense team, Blagojevich’s taking-his-fight-to-the-people goes way beyond trying to influence or manipulate a local jury pool. Any observer of the goings on in Chicago would be hard-pressed to come up with a model that accurately characterizes what this particular indicted politician is doing. So why would the defense vehemently fight for Rod Blagojevich’s right to be on Celebrity Apprentice when conventional wisdom would say they would welcome their client shutting his mouth, no matter who is doing the shutting. At the same time, the prosecution has worried that his over-the-top PR campaign would indeed taint the jury. And they have a right to worry. If Blagojevich successfully converts himself into a character, a gutsy man of the people going up against the power and resources of Big Government, it could resonate with a fed up public that has sometimes shown its willingness to hitch its frustration and anger to populist characters. So it might be madness, but perhaps in the case of Rod Blagojevich, madness is a strategy in itself.
On the morning after the third episode of Celebrity Apprentice aired, the headline was that Blagojevich is such a buffoon that he couldn’t even handle the basics of operating a computer. Daryl Strawberry, another member of his ‘RockSolid’ team on the show, wondered aloud for the cameras how Blagojevich became a successful politician. He said, “You don’t just fall up there” to be governor. So in the morning, Blagojevich’s computer skills—along with an unfortunate sexual reference—were fodder for bloggers, commentators, comedians and news-of-the-weird fans. But while we were busy guffawing at the fallen governor, is it possible that we were laughing at a shrewd not-so-funny strategy. In a couple of months, Blagojevich’s trial will commence, where he will be facing a twenty-four count indictment including two RICO counts. To prove the RICO portion, the government is going to have to prove that Rod Blagojevich was the master mind of a criminal enterprise. Now put yourself on the jury for a moment, overlay Blagojevich fumbling to make sense out of one of these new-fangled computer things, and ask yourself if—based on this one piece of information being fed to us, the people of the jury, in the veritable information-vacuum of a courtroom—do you really think that Blagojevich, that bumbling guy who couldn’t make sense out of a computer on a silly reality show, could be the master mind of anything? Could these on-camera antics actually have been the result of a strategy in the making.
To digress for a moment and to be completely fair, one problem that charismatic people—those who have occupied positions of power or leadership—often have is that they are unwilling to give up on their well-crafted image, even if it means saving their livelihood and liberty. Corporate CEOs often have to wrestle with their attorneys over employing the “know-nothing” defense because even in a courtroom, they vainly cling to their well-crafted image, and will do (almost) anything to prevent the public from seeing them as something other than the product of a PR machine. But some reports from Chicago indicate that Blagojevich may indeed try anything, be anything, become anything, if it means getting to the other side of this thing.
In another snippet gleaned from Blagojevich’s appearances on Celebrity Apprentice, he is shown on the phone, having a conversation with a nameless party, presumably back in Chicago. On that call, he is swearing a lot—as he is on several other occasions in the three shows he was on—and he was saying something about getting someone to “corroborate” something. That’s the word he used in the midst of his profanity laced conversation. Now we’re back on the jury, watching the two legal teams trying to spin the story of what happened during the Blagojevich administration. The prosecution might make the case that his swearing was an intimidation tactic that went beyond hard ball politics. But the defense has only to play this tape to demonstrate that swearing was standard operating procedure for Blagojevich, and the language he used on the tape was nothing out of the ordinary. That’s going to be the mantra of the trial, that Blagojevich was conducting business in the rough and tumble world of politics, and that he never did anything that—within proper context—had him intentionally committing crimes. Some words, like for instance, the word “corroborate” could come up on the tapes as well, and the defense could again point to him using the word in what appears to be a casual exchange. Words like this, within the ever-widened context of the playing field—from his radio show, his many personal appearances, his role on Celebrity Apprentice—might take on a life of their own, and his attorneys may use them to pick apart the tapes. Will it be enough to explain away the considerable evidence arrayed against him? It’s not open-and-shut, but it could. If the motivations behind the cooperating witnesses are successfully explored and exploited, and if context undermines the contributions of the unindicted co-conspirators, it could come down to the tapes. And Blagojevich has been plastering the world with a veneer of context that could end up leveling the playing field.
One more thing from the show: Blagojevich’s strange sexual reference. When Blagojevich’s team quickly picked a team leader, and the Governor thought the decision was done too hastily, without deliberation, he said that it was like “premature ejaculation,” and then he went on a rambling, mumbled diatribe about when he was governor, and how they used to negotiate and plan to arrive at a more collective decision. This might have just been an unfortunate off-the-cuff reference that made good copy for a reality show, but it also could have been a wry reference to a a future defense strategy. It is possible that Blagojevich’s defense team will attempt to portray the government as so eager to get Blagojevich that they fired off all their guns before he actually committed any crimes, and they’ll further say that if they…um…relaxed, and took it more slowly, it would have become clear that Blagojevich was not running a corrupt administration. So like an over-eager teenager, according to a Blagojevich spin, the government prematurely ejaculated, therefore revealing their over-zealous intentions.
The Strategic Value of a Continuance
So why is the continuance—the battle over time—so important?
For the Blagojevich team, it is a line in the sand, the source of a slew motions that employ a variety of legal techniques to push the trial date back. For the prosecution, it has become an equally dire issue because it would seem that with the Supreme Court ruling imminent, a just and cautious DOJ might welcome a delay in order to make sure that the effort and expense of a trial is not washed away on appeal if the appellate court finds merit in the argument that a defendant must know the basic accusations that he is charged with. Underline basic because the honest services portion of the indictment is not as extraneous as the prosecution has been saying via their response motions.
So what’s in it for both sides?
For the prosecution, even if the evidence piled up against Blagojevich remains the same, and even with all of the tape recorded conversations that are supposed to prove he was being more than a hard-nosed politician, a substantial portion of the indictment is wrapped up in the honest services statute that will soon be decided by the Supreme Court. The code is mentioned in 13 of the 24 counts and it may actually be the glue that holds the case together, because just as context is turning out to be a very meaningful part of the defense, so is it likewise a bulwark of the prosecution’s case. With a string of challenge-worthy witnesses, a small mountain of audio evidence of questionable quality which is rapidly being buttressed by context supplied by the chatty Blagojevich, and an investigation that more often than not swooped in before the crimes were actually committed (or in some cases the crimes were even more ethereal since Blagojevich’s aides protected their boss by not carrying out his alleged criminal intentions), the prosecution needs to portray the totality of Blagojevich’s administration as a criminal enterprise, or as an organization that was designed more around personal benefit than a venture that would ultimately benefit the state of Illinois. It is this—the honest services portion—that is the glue that sticks these otherwise rather shaky individual crimes together, and without being able to present this total vision at trial, the prosecution could be in trouble. So the strategy, for the prosecution, is not to worry as much about caution and justice—and perhaps fairness—as making sure the case is argued the way they want to argue it before some charges fall out. If it works, it might not be a bad trick because if they can dig in their heels, prevent the continuance and get the conviction, it might still pass appellate muster because after all, as they have said all along—and Zagel has agreed—he would have simply faced less charges supported by the same evidence.
Besides having to overcome this fundamental problem with fairness, for the defense, it would give them another couple of months to digest documents and tapes, and most importantly, to send the defendant out on his many forays to establish context. Blagojevich, who’s approval rating had dipped to miniscule proportions before the feds came in, would also use the time to continue the project of reinventing himself as a fighter for the little guy and a champion against the power of Big Government, which are both themes that are topical and play well in the current social and political climate.
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