Ousted Illinois Gov. Rod Blagojevich faces both high-stakes charges and potentially damaging testimony from one if not more of his former insiders if he goes to trial in an alleged corruption and racketeering scheme, law professor Andrew Leipold says. Leipold, an expert on criminal law and the federal judicial process, examines the alleged "pay-for-play" case against Blagojevich in an interview with News Bureau Business & Law Editor Jan Dennis.
Were there many surprises in the indictment, in light of the criminal complaint filed against Blagojevich in December?
There were no huge surprises, although there were a couple of smaller ones. As expected, most of the alleged criminal activity arose from various "pay-to-play" schemes, where the former governor is accused of using the powers of his office to extract payments from different sources. As a result, according to the indictment, the former governor engaged in a scheme to deprive the citizens of Illinois of their right to "honest services." Federal law recognizes the denial of honest services as a basis for criminal liability under the fraud statutes.
It was mildly surprising to see the indictment allege that the former governor and others were functionally an "enterprise" for purposes of the federal racketeering statutes, and that they had engaged in a racketeering conspiracy. Although the facts alleged, if proved, would justify the charge, it certainly raised the stakes compared with the allegations in the criminal complaint. It is also interesting to note that the indictment states the prosecutor's intent to seek forfeiture of the money improperly received by the former governor, to the tune of $188,370. This is not a timid indictment.
What are the former governor's legal options?
Formally his options are a) start preparing for trial, or b) try to work out a plea deal with the prosecutor, where he would plead guilty to some counts in return for the dismissal of other charges, sentencing concessions, or both. In fact, I expect his defense team to work on both tracks simultaneously. Which route he eventually goes will turn in large part on the strength of the case against him and what the prosecutor is willing to offer.
Former Blagojevich chief of staff John Harris also was indicted, but has agreed to cooperate with authorities. What impact might that have on the case?
John Harris' cooperation with the government is a serious blow to the defense, since presumably he was in a position to know a lot of details about what the governor said and knew. It also is worth noting that Mr. Harris may not be the last defendant to cooperate. There are reports that at least one other defendant is looking to make a deal.
If the case goes to trial, when might it start and how long could it take?
If this case goes to trial it will not start for quite some time. There are lots of defendants, for now anyway, 19 counts in the indictments, and the events in question are both complicated and took place over a span of several years. Defense counsel will seek, and should receive, plenty of time to prepare their case. Once a trial begins, it's impossible to say at this point how long it might last. It depends in large part in how many defendants are still standing then.
Would finding an impartial jury be difficult in the wake of the national exposure the case has received and the former governor's media campaign to deflect the allegations?
It will take time to pick a jury, but the pretrial publicity should not create that big a problem. First, by the time a trial starts, memories will have faded. Second, there are lots of examples of high-profile cases where there is saturation coverage, but a jury is still found, such as the O.J. Simpson trial. Third, a lot of the publicity was created by the governor himself during his media tour, so it would be hard to call this "prejudicial" pretrial publicity.