I spoke to a reporter this morning who has attended each and every day of the Rod Blagojevich trial in Chicago. Based on what I heard, there's still time for the defense to pull the the former governor out of this mess. But it's a long shot. Things will have to break just right. Illinois jurors might surprise us all and send the feds limping back to Washington.
The former governor stands trial in a Chicago federal courtroom with his brother and several former aides. The Government claims he tried to turn to the governor's mansion into what I will call a political derivative. He wanted cash, security, in exchange for the influence he could wield in highway construction projects, state Medicaid reimbursement rates and even an appointment to the United States Senate. From afar and filtered through the measly column inches of newsprint devoted to the trial, the case looks and sounds damning: We bailout corrupt Wall Street goombahs but prosecute state politicians.
Blagojevich looks and sounds like a cherubic sociopath. We've learned that he spends more on his wardrobe than on his mortgage. He sports a vanity hairdo lacquered just so to cover any bald spot. His speech patterns make George Carlin look like a choirboy. And no one will accuse him of working too hard: testimony at trial revealed he spend two to eight hours a week in the office, sometimes hiding in the executive bathroom to avoid bearers of bad tidings.
Rod is, to put it bluntly, a clod. He might also be a criminal. He certainly sounds like one on the wiretaps thus far revealed at trial. He was so eager for cash that I marvel he did not hold an Ebay auction to select a successor to the Senate seat vacated by Barack Obama.
Just how can the defense win this case?
The trial can be won by making it into a morality play pitting good versus evil. At root, every trial is such a struggle. The winning side either persuades the jury that goodness resides on its side of the aisle, or, if there is no goodness, that evil resides on the other side of the aisle. Good versus evil is the theme of every trial; the facts of a particular case are mere set pieces.
Thus far, the defense has focused on the facts and seems to have neglected the deeper, thematic work of trial. Blagojevich is not a good man. Let's not fool ourselves. But wherein lies the greater evil: In the hands of the man we elected to govern, or in the hands of ambitious federal prosecutors taking direction from Washington's overlords?
The defense suggested in opening statements that Blagojevich was really the unwitting dupe of savvy aides. He is, after all, broke. If he were running the governor's office as a virtual ATM machine he wouldn't be cash strapped now, would he? Several of his former aides who testified against him at trial told the jury they are now making small fortunes manipulating the levers of power in Springfield. They are the crooks.
This will be a hard defense to pull off. First, Blagojevich is himself a lawyer. It's hard to blame your lawyer for bad advice when you yourself are similarly trained. Besides, the selected audiotapes played thus far suggest that Blagojevich was really captain of the ship. Let me repeat: The governor looks like a venal creep.
So how to win this one? Find a bigger creep, one with more power, more arrogance, less accountability to the men and women sitting in the jury box. These Illinois voters did not ask the United States Justice Department to waltz into Springfield and topple the man for whom they voted. The only way to walk Blagojevich is to put the government on trial and persuade the jury that they have more to fear from runaway feds than they do from a business-as-usual politicians in expensive suits and a bad hairdo.
You scoff? It worked for Geoffrey Feiger in Detroit. He was indicted for bundling campaign contributions. The indictment was solid. But the Government fell on its face at trial. Feiger's defense counsel, Gerry Spence, persuaded a jury that federal agents had betrayed the people's trust by bullying a people's champion. When the trial court ruled that the defense could not introduce as evidence facts to support this claim, Spence pressed on anyway, making jurors wonder just what the Government and the judge were trying to hide. Feiger is free today not because he was innocent of the crimes charged, but because the jury did not trust the Government and thought it had behaved unfairly.
Blagojevich's defense team has been handed a gift that will open this door to evidence of the Government's and the court's betrayal of the truth. This week, the trial judge ruled that a series of audiotapes made by the Government are inadmissible. The defense needs to wage a fight about these tapes in the presence of the jury. Let jurors wonder why the Government cherry picked from secret recordings it made to produce only those which hurt the defense. Why, if we are seeking the truth, can't all of the tapes be heard? What context is so dangerous that a juror cannot hear it?
One quirk in the law of evidence is that the Government can offer a recording of a defendant as evidence. The tape is not hearsay because it is the admission of a party opponent, an exception to the hearsay rule. But when a defendant seeks to offer a tape of himself made by the Government, the evidence admissible for the attack is suddenly unavailable to defend. The defense needs to press this theme and fight to get the tapes into evidence. If it fails, it can tell the jury that it tried to bring them the truth, the whole truth, and nothing but the truth, but the Government objected.
The defense has tried a polite, unexceptional case thus far. The result has been damaging evidence and perceptions of the Governor. There's time to turn this around. But to do so, the defense will have to turn up the heat. Let's see if they can do it. And, of course, let's see what happens when the former governor takes the witness stand.
This trial is far from over.