Evolving Federal Statements On Blagojevich Arrest

As a citizen appalled by blanket electronic surveillance, sweeping application of the so-called Patriot Act, indefinite detention, holding prisoners without charges, illegal 'rendition' flights, and torture, I was dismayed by the stunt arrest of the governor of Illinois on Dec. 9, 2008. I have previously tried to indicate some anomalies: The arrest was neither necessary nor sufficient to prevent official acts by the governor; the charging document and press conference rewarded a newspaper that openly supported the U.S. Attorney in the case, involving appearance of impropriety at best and conflict of interest at worst; the arrest advanced political agendas; and the sweeping wiretaps have harvested "thousands" of recorded telephone conversations in the local political establishment, according to USA Patrick J. Fitzgerald, which must choose whether to ratify his actions. Then there's the fact that Fitzgerald wiretapped the governor's wife—not, by any definition, an elected official. Including an excerpted recording of Mrs. Blagojevich speaking with her husband in the charging document, and airing it for global news media, was contemptible.

This post is concerned with the evolving statements and characterizations connected with that odd arrest and lack of indictment. In any trial, jurors as triers of fact are instructed to take witness credibility into account in their deliberations, and they may take into account changes and/or inconsistencies in witness statements. Explanations by the Northern District of Illinois began with a flashy offense but have progressed in a direction increasingly defensive.

Following, to date, are the federal accounts of and characterizations of the arrest of Illinois Gov. Rod Blagojevich on Dec. 9, 2008. Most recently, the government has also been asked to account for its highly publicized press conference on Dec. 9, 2009:

1. Dec. 7, 2008, FBI affidavit in the Dec. 9, 2008, charging document in the arrest of Gov. Rod Blagojevich and John Harris:

Conclusion: "I believe that there is probable cause to believe that: (a) ROD BLAGOJEVICH and JOHN HARRIS, and others have conspired with each other and with others to commit offenses against the United States, namely to devise and participate in a scheme to defraud the State of Illinois and the people of the State of Illinois of the honest services of ROD BLAGOJEVICH and JOHN HARRIS . .

[THIS COUNT, IN THE CHARGING DOCUMENT, IS BASED ON MATERIAL GATHERED FROM 2002 TO 2004, AND ON THE WIRETAPS IN FALL 2008. IT SKIPS YEARS 2005, 2006, AND 2007.]

(b) ROD BLAGOJEVICH and JOHN HARRIS, being agents of the State of Illinois, a State government which during a one-year period, beginning January 1, 2008 and continuing to the present, received federal benefits in excess of $10,000, corruptly solicited and demanded a thing of value, namely, the firing of certain Chicago Tribune editorial members responsible for widely-circulated editorials critical of ROD BLAGOJEVICH, intending to be influenced and rewarded in connection with business and transactions of the State of Illinois involving a thing of value of $5,000 or more, namely, the provision of millions of dollars in financial assistance by the State of Illinois, including through the Illinois Finance Authority, to the Tribune Company involving the Wrigley Field baseball stadium . . .":

[OMITTING THE FACT THAT THE TRIBUNE, ALONG WITH CRITICIZING BLAGOJEVICH, ALSO REPEATEDLY AND UNSTINTINGLY PRAISED FITZGERALD.]

2. Dec. 9, 2008, press conference, Chicago: U.S. Attorney Patrick J. Fitzgerald: We acted to stop a "crime spree":

"This is a sad day for government. It's a very sad day for Illinois government. Governor Blagojevich has taken us to a truly new low. Governor Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree. We acted to stop that crime spree.
"The most appalling conduct Governor Blagojevich engaged in, according to the complaint filed today or unsealed today, is that he attempted to sell the Senate seat--the Senate seat he had the sole right, under Illinois, to appoint to replace President-elect Obama.

[ALMOST IMMEDIATELY, THIS 'NONPARTISAN' PRESS CONFERENCE MANAGES TO INJECT THE NAME OF OBAMA.
AND AGAIN:]

". . the most cynical behavior in all this, the most appalling, is the fact that Governor Blagojevich tried to sell the appointment to the Senate seat vacated by President-elect Obama. The conduct would make Lincoln roll over in his grave . . ."

[WE WOULDN'T HAVE KNOWN WHICH SENATE SEAT, IF FITZGERALD HAD NOT REITERATED THAT IT WAS OBAMA'S?]

"QUESTION: Mr. Fitzgerald, was this done today in an effort to head off the appointment of someone to fill Barack Obama's Senate seat? Was it--was it so imminent that that's why you had to step in?

[OH, IT'S NOT JUST THAT SENATE SEAT, FORMERLY FILLED AS WE KNOW BY . . .]

MR. FITZGERALD: I would say that we decided that this required unusual measures and there are a lot of things going on that were imminent. There's a bill sitting on a desk that we think a person who was supporting that bill has been squeezed to give $100,000. And to let that bill be signed, to me, would be very, very troubling.
There's a hospital--a children's memorial hospital--believing that it's getting $8 million, but its CEO has not coughed up a campaign contribution, and the thought that that money may get pulled back from a children's memorial hospital is something that you cannot abide. There is an editor that they'd like fired from the Tribune, and I laid awake at night, worried whether I'd read in the paper in the morning that when there were lay-offs, that we'd find out that that person was laid off.

[OF THESE ITEMS, THE CHARGING DOCUMENT SPELLS OUT THE ONE ABOUT THE TRIBUNE EDITOR: THE ALLEGATION ABOUT THE CHICAGO TRIBUNE IS COUNT TWO.]

The complaint--the complaint lays out, in there in fact, when there were layoffs, there were conversations to find out whether the editor who should of--they thought should be fired, and he wasn't. And the governor was asking whether there would be more layoffs. So we have a governor in this modern times, the only one who's looking for more layoffs. You take that, what's going on and add it to the fact that we have a Senate seat that seemed to be, as recently as days ago, auctioned off to, you know, to the highest bidder for campaign contributions.

[SO THE SENATE SEAT HAS ALREADY BEEN AUCTIONED OFF?]

And Governor Blagojevich, own words, on the--on the tape or the bug that set forth in the complaint, talked about selling this like a sports agent.
"QUESTION: Couldn't you . . .
MR. FITZGERALD: So--so—I'm just--and so, we stepped in for a number of reasons. Basically, as I said before, we're in the middle of a clutching crime spree, and we wanted to stop it."

Press conference, Fitzgerald: "there's a lot to be said for exposing this to the sunlight":

"QUESTION: But, Mr. Fitzgerald, would you please . . .
(CROSSTALK)
QUESTION: . . . address one thing, and that is, when Rod Blagojevich walks out of here today, unless I'm mistaken about the constitution of Illinois, he will still be governor. He will still have the power to make the appointment to the Senate seat. He will still have the power whether or not he's going to sign the bill that you're concerned about.
Also, would you address the fact--and I know you referred to this--would you just address whether or not President-elect Obama was aware that any of these things were taking place?

[SIMILAR TO THE NON-DENIAL DENIAL: THE NON-EXCULPATORY EXCULPATION:]

MR. FITZGERALD: OK. I'm not going to speak for what the president-elect was aware of. We make no allegations that he's aware of anything. And that's as simply as I can put it.
And the first part, my understanding is that he is the--he is the sitting governor of Illinois today, now, and that--that is not something we have any say in or control over.
So at the end of the day, he will be the sitting governor.
QUESTION: But you say you took this step so that you could intervene because you were afraid something was going to happen with this Senate seat that would taint it. He still has the power to do that.
MR. FITZGERALD: Yes. And when there's--when there's a bunch of people scheming in private and they think no one's listening and no one's aware of it, they can do a heck of a lot more than when someone goes and basically raids the crime in plot and airs what's going on and people know what we're aware of.
And if I were someone who wanted to pay to play, I think this would be about the worst time to try to make a cash contribution to someone to get something illegal. And there's a lot to be said for exposing this to the sunlight."

[SO THERE WERE NO OTHER MEASURES POSSIBLE, BETWEEN ARREST AND DOING NOTHING?]

"So this is a criminal prosecution that we will see through the court system. He is presumed innocent. But I was not going to wait until March or April or May to get it all nice and tidy, and then bring charges, and then say, "By the way, all this bad stuff happened because no one was aware of it back in December."
I think that would be irresponsible.
(CROSSTALK)
So sometimes when there's ongoing criminal conduct, and this is a very different case than what we often see, we will expose the criminal conduct and bring charges to let people know we're on to it and to hopefully to put a stop to it. . ."

[SINCE WHEN DO PROSECUTORS STEP IN TO PREVENT A WHITE-COLLAR CRIME, INSTEAD OF CATCHING THE GUYS RED-HANDED? WHAT WAS THE POINT OF EAVESDROPPING ON "THOUSANDS" OF WIRETAPS, IF NOT TO CATCH ALLEGED PERPS IN THE ACT?]

3. Same press conference, Robert Grant, FBI: "a phone call from me to the governor, advising him that . . . there were two FBI agents outside his door; asked him to open the door so we could do this as quietly . . . without waking the children":

[AWWWW . . .]

"QUESTION: Could Mr. Grant describe the arrest?
There were no cameras there, no witnesses apparently. Can you explain how it happened?
MR. GRANT: It occurred about six o'clock in the morning, and it was a phone call from me to the governor, advising him that we had a warrant for his arrest, that there were two FBI agents outside his door; asked him to open the door so we could do this as quietly, without the media finding out about it, without waking the children.
He was very cooperative, and that's it.

[THEY COULDN'T HAVE WAITED UNTIL THE CHILDREN WERE AT SCHOOL?]

QUESTION: Was he handcuffed?
MR. GRANT: Yes, which is normal, standard practice for us.
QUESTION: What did he say on the phone?
MR. GRANT: First question?
QUESTION: What did he say to you?
MR. GRANT: Well, I woke him up. So the first thing was, was this a joke? But I'll leave the rest--you know, he tried to make sure this was an honest call. So . . .

[THIS IS THE FBI. WE'VE GONE AFTER MAFIOSI, BUT WE WOULDN'T WANT TO SULLY YOUR EARS WITH OFF-COLOR LANGUAGE THAT SHOCKED SOME OF THE "MOST CYNICAL" AMONG US.
[Q FROM ME: WHO ARE THE 'MOST CYNICAL' AGENTS IN YOUR OFFICE? I WOULD LIKE TO MEET THEM.]]

QUESTION: How about his family? Was his wife there when this happened? And his children, did they wake up?
MR. GRANT: They did not wake up that I know of. They were beginning to stir as we left, but they were not awake and not aware. But his wife was awake."

[COULDN'T THEY JUST HAVE TOLD BLAGOJEVICH TO SHOW UP AT THE COURTHOUSE?
AND BTW HOW DID THEY KNOW THAT MRS. BLAGOJEVICH WAS AWAKE?]

"QUESTION: (inaudible) when did you make the decision to actually arrest him rather than allow him to turn himself in, to sort of send a signal here?
MR. GRANT: It was exactly what Pat said earlier, and that was, we had a--we have a lot of things we learned from the wiretap, a lot of things we learned from these microphones. There is a lot of investigation that still needs to be done. And there are critical interviews that we have to do and cooperation we need to get from different people.
So it wasn't about, as Pat said, tying this in a bow, waiting until spring, letting things be done that damaged the state of Illinois, damaged the United States Senate, hurt people. . ."

[SO, IF THEY ACTUALLY THOUGHT A U.S. SENATE SEAT WAS GOING TO BE AUCTIONED OFF, THEY COULDN'T HAVE NOTIFIED THE SENATE? WOULDN'T THAT HAVE BEEN AT LEAST AS EFFECTIVE A PREVENTIVE MEASURE AS A FLASHY ARREST?]

4. Dec. 14, 2008, leaks to the Wall Street Journal: "The precise timing of Tuesday's dramatic, pre-dawn arrest was not dictated by Fitzgerald, nor was it dictated by the pace of Blagojevich's alleged "crime spree." It was dictated by the ChicagoTribune, according to people close to the investigation . . ."

[SO AFTER I AND SOME OTHER JOURNALISTS NOTED POSSIBLE BENEFITS TO THE CHICAGO TRIBUNE FROM THE PROSECUTOR'S HEAVY-HANDED PRAISE IN HIS FILING AND PRESS CONFERENCE, HIS PEOPLE MAKE TRACKS TO LEAK TO THE WSJ THAT REALLY THEY ARE CRITICIZING THE TRIBUNE:]

"Conventional wisdom holds that U.S. Attorney Patrick Fitzgerald ordered the FBI to arrest Rod Blagojevich before sunrise Tuesday in order to stop a crime from being committed. That would have been the sale of the Senate seat vacated by President-elect Barack Obama.
But the opposite is true: Members of Fitzgerald's team are livid the scheme didn't advance, at least for a little longer, according to some people close to Fitzgerald's office. Why? Because had the plot unfolded, they might have had an opportunity most feds can only dream of: A chance to catch the sale of a Senate seat on tape, including the sellers and the buyers.
The precise timing of Tuesday's dramatic, pre-dawn arrest was not dictated by Fitzgerald, nor was it dictated by the pace of Blagojevich's alleged "crime spree." It was dictated by the Chicago Tribune, according to people close to the investigation and a careful reading of the FBI's affidavit in the case.
At Fitzgerald's request, the paper had been holding back a story since October detailing how a confidante of Blagojevich was cooperating with his office.
Gerould Kern, the Tribune's editor, said in a statement last week that these requests are granted in what he called isolated instances. "In each case, we strive to make the right decision as reporters and as citizens," he said.
But editors decided to publish the story on Friday, Dec. 5, ending the Tribune's own cooperation deal with the prosecutor. . .

"Had it not been for the Tribune's Dec. 5 story, the meeting Blagojevich's brother was arranging might have proceeded. Mr. Blagojevich is quoted as citing the story, in the affidavit, then calling off the meeting. At a minimum, the FBI's recorders would have been rolling when he reported back. The feds also probably would have tried to bug the session live, or at least to tail the participants and secretly film or photograph them. That's what feds do. Jurors love video."

[cf THE POINT ABOVE, WHICH HAS ALSO MADE BY OTHER WRITERS.
BUT WAIT, IT WAS NOT THE TRIBUNE'S FAULT AFTER ALL:]

5. Dec. 15, 2008, Wall Street Journal: "The specific timing of the arrest of Rod Blagojevich wasn't affected by a ChicagoTribune article revealing that the Illinois governor was being secretly recorded, according to a spokesman for the Federal Bureau of Investigation."

[WHAT A RELIEF.]

"Article Put More Pressure on the FBI to Move In," "Correction & Amplification:
The specific timing of the arrest of Rod Blagojevich wasn't affected by a Chicago Tribune article revealing that the Illinois governor was being secretly recorded, according to a spokesman for the Federal Bureau of Investigation. This article incorrectly states the Dec. 5 Tribune article dictated the timing of the Dec. 9 arrest."

6. Jan. 15, 2009, government filing arguing against defense motion to remove Fitzgerald et al. from the Blagojevich case: " . . . these factors, together with the fact that the defendant has yet to be indicted and thus any trial is at best many months away, render negligible any potential impact of the U.S. Attorney's comments on the fairness of a future trial" :

[SO MUCH FOR INTERRUPTING A 'CRIME SPREE' THROUGH AN ARREST. AGAIN, IF THE PROSECUTOR ACTUALLY BELIEVED THAT THE U.S. SENATE SEAT WOULD BE AUCTIONED--OR HAD BEEN, AS HE SAID ON TELEVISION—WHY DIDN'T HE NOTIFY THE U.S. SENATE? OR DEPARTMENT OF JUSTICE HEADQUARTERS? DID HE ACTUALLY THINK THAT ATTORNEY GENERAL MUKASEY WOULD NOT BE CONCERNED?]

"Although the U.S. Attorney did make comments at the press conference which characterized, rather than stated, the allegations of the complaint, in context, none of these comments came close to posing a "serious and imminent threat to the fairness of an adjudicative proceeding." Given the defendant's official position and the serious nature of the allegations, there was little likelihood that the comments would materially affect the public's perception or increase the publicity beyond that generated by the charges, allegations, and wiretap evidence themselves."

[EXCERPTS OF RECORDINGS FROM THE WIRETAPS ('INTERCEPTS' IN THE ORWELLIAN TERM USED BY FITZGERALD) WERE INCLUDED IN THE CHARGING DOCUMENT AND WERE QUOTED AT THE PRESS CONFERENCE.]

"It is apparent that the U.S. Attorney's descriptions of the wiretap conversations and strong statements concerning the seriousness of the allegations served the legitimate purposes of informing the public, communicating a strong message of deterrence, and encouraging the public to do their part to end corruption by resisting similar conduct and coming forward with information. All of these factors, together with the fact that the defendant has yet to be indicted and thus any trial is at best many months away, render negligible any potential impact of the U.S. Attorney's comments on the fairness of a future trial.

[SO, A SLOW-MOVING CRIME SPREE, RATHER LIKE THAT WHITE BRONCO FREEWAY CHASE?
AND THAT SMARMY ASSURANCE ABOUT NOT WAKING THE CHILDREN—THAT WAS LEGITIMATE PURPOSES OF INFORMING THE PUBLIC? GOOD THING YOU TOLD ME: I THOUGHT IT SOUNDED LIKE TRYING TO PRETTIFY OR SWEETEN UP THE HUMILIATION OF THE GOV AT HIS OWN HOME.]

And, contrary to the defendant's suggestion otherwise, grand jury proceedings are not adjudicative and in fact do not equate with trials for purposes of trial publicity rules. Fair treatment of investigative targets in the grand jury–which is an obligation of the government in every case–is ensured by giving and repeating the standard admonishment given to grand jurors upon their impanelment, namely, that the grand jurors must not consider anything they have heard outside the grand jury room."

Any legal case unfolds over time. But the open-ended wiretap dragnet in this case, the transparent campaign to humiliate a sitting governor by arresting him at his home, and the evolving explanations of procedure from federal sources, should inspire careful scrutiny.

Borrowing from the title of a Sinclair Lewis novel: It can't happen here? In the United States of America, surely we could not see an 'unpopular' political figure arrested by a 'popular' one, and sit by expressing no concern about questionable agendas or procedures—right? Surely, our watchdog media would weigh in with concern about issues besides the relative popularity of the persons involved—right? It couldn't happen here, could it, that an arrest could be used as a substitute for an indictment in white-collar allegations, that the arrest could be carried out by FBI agents working for a headline-grabbing prosecutor, at a time when the prosecutor's job is up for reappointment? Surely, if it did, concerned office holders and journalists would refrain from ganging up on the target and his wife, would weigh in with something other than ridicule of the target, right?

It's not Lincoln who is rolling over in his grave. It's America's first winner of the Nobel Prize in Literature, Sinclair Lewis.

Margie Burns is a freelance journalist in Washington, D.C., who covered the spring 2007 trial of I. Lewis 'Scooter' Libby.

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