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The Rod Blagojevich Trial: Battle Over Wiretap Tapes Will Shape Outcome

5 years ago
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The freak show that is the federal corruption trial of Rod Blagojevich has come to Chicago. Jury selection starts Thursday. Some 700 poor burghers are lined up for duty. Only 12 will get to make their judgment known. And so the city known for its "stormy, husky, brawling... big shoulders" is set to embark upon months-long heavy lifting in bluster and bluff over a case that presents an odd confluence of tabloid cheesiness, political shenanigans, and legal nuance.
Accused, among other things, of trying to sell President Barack Obama's old Senate seat after the 2008 election, the brash and boisterous former governor faces 24 counts of racketeering, bribery, attempted extortion, conspiracy, and other assorted felonies. If convicted of even some of these counts, it is likely that Blagojevich would serve significant prison time -- perhaps as much as 20 years. So while this trial has taken on an air of the comedic -- never mind the schlocky reality show appearances and the talk radio gig; just the defendant's hair alone makes people chuckle -- the truth is that Blagojevich's liberty is on the line. At 53, he might never leave prison alive if he ever gets there.
U.S. Attorney Patrick Fitzgerald, the famously dogged federal prosecutor who took on the White House and "Scooter" Libby a few years ago, is back reprising his role as the White Hat with the ever-ready quote. He said at the time of Blagojevich's arrest in December 2008 that the defendant was involved in a "political corruption crime spree" that would make Abraham "Lincoln roll over in his grave." Blagojevich, for his part, then called Fitzgerald and his government team "cowards and liars." Maybe someone should invite Mike Ditka to monitor the hundred or so sidebars we are likely to see before a verdict?
The feds will use Blagojevich's own voice in an effort to convict him. There are hours and hours of it on wiretap tapes that prosecutors believe will offer jurors a grim but entertaining and rare view into a series of allegedly shady transactions (bribes, really) at the highest levels of power. Remember, too, that Blagojevich was taped by the feds after he challenged the world, a la Gary Hart, to tape him. Blagojevich's lawyers, meanwhile, will try to use all the nuance of politics and governance as a defense, arguing that shadiness isn't a crime where there is no bad intent on the part of the shady. And there will be plenty of indignant outrage from the defendant himself, whether he actually testifies or not.
That's just another reason why it's a shame that the trial won't be televised. Its litany of interesting issues reads like a vibrant law school/political science syllabus. First, there is the tension between the former governor and the White House over a dispute involving the circumstances of filling the Obama seat that has resulted in the issuance of subpoenas to Senate Majority Leader Harry Reid (D-Nev.) and Sen. Dick Durbin (D-Ill.). Team Blagojevich even tried to subpoena President Barack Obama, but was blocked by U.S. District Judge James Zagel, who now finds himself presiding over the trickiest trial he is ever likely to see.
The judge will have to navigate between the parties on the issue of the tapes, and how much of them are heard by jurors. Prosecutors will want to keep it simple. The defense will seek to introduce confusion under the guise of "context." Judge Zagel will have to ensure that the defense doesn't offer up any politically tantalizing but legally irrelevant "red herrings" while at the same time ensuring that federal prosecutors don't oversell the case against Blagojevich. The closer Judge Zagel is able to keep the trial focused upon whether the technical elements of the alleged crimes have been proven the better off we'll be. And whichever side wins the battle of the tapes will win the trial.
Another fascinating flashpoint to watch for will be courtroom demeanor. Judge Zagel has an enormously challenging job ahead on this point. He must ensure that Blagojevich's dominating personality doesn't overwhelm the jury. And he must rein in Fitzgerald's prosecutors, too. And with official Washington all keyed up over the matter, the judge cannot countenance endless after-court press conferences and the sorts of strategic leaks, which have marked this story from its start. He's going to have to run the trial tight otherwise he's likely to be rolled over by the sheer force of the personalities converged into the courtroom.
But most important, in my view, Judge Zagel has to ensure that Blagojevich gets a fair trial by an impartial jury even in these extraordinary circumstances. This means the judge has to ensure that fame-seeking potential jurors are kicked out of the jury pool and that the jurors who do survive jury selection are honest, thoughtful citizens who will have the stamina to be at the center of all this all through the long summer ahead. Prosecutors will want conservative, law-and-order types. The defense will want free-thinking types. And that's why I'm going to be watching very closely over the next few days and weeks for the sorts of questions the lawyers are asking of prospective jurors.
Is this a political trial or merely the trial of a politician? Ask me again on Labor Day.
Filed Under: Scandal, Governors

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