Tuesday, August 17, 2010

Blagojevich: Who Holds The Government Accountable?

The United States Government huffed, puffed and blew an elected governor out of office in the State of Illinois. But at the end of the day, all prosecutors have to show for their efforts in the prosecution of Rod Blagojevich is a single count of making a false statement. The jury could not reach a verdict on the remaining 23 counts. Here's to hoping United States District Judge James B. Zagel grants a motion by Blagojevich to acquit him of the sole count of conviction.

I am no fan of Blagojevich. The conversations he reportedly had on tape were ugly. He is a guttersnipe. But he is a politician, after all. He is such stuff as Congressmen and Governors are made.

But I wonder how many lies the government told Blagojevich during the course of its investigation? I wonder how many witnesses were intentionally misled? I wonder how often jurors were kept in the dark about how prosecutions of this sort are made?

Let's begin with fundamentals: It is a federal offense to lie to a government agent performing his duties. But guess what? The United States Supreme Court has stated it is all right for government agents to lie to you. In other words, if you lie to the Government, you face five years in prison; if the Government lies to you, that's business as usual. Why the asymmetry? Shouldn't the Government be held to the same standard as the people it serves?

Just the other day I learned of a prosecution of a man for making a false statement based on the following facts: The FBI thought a man disposed to take bribes. Two agents dressed up and pretended to be organized crime figures. They approached the target and offered him cash to do the wrong thing. The man declined to take the cash. So much for that theory of prosecution.

As the agents left the meeting, they told the man to be sure to deny meeting with them if the feds ever came calling.

Sure enough, two new agents, this time proudly displaying their FBI badge, showed up at the man's house. They asked whether the man had ever met with two men who had offered him a bribe. The man denied the meeting; he lied, in other words. Bingo! Now the fellow is prosecuted for making a false statement to federal agents.  There is something inherently sleazy about this.

I don't know the Blagojevich case well enough to know whether similar Government chicanery was used to trip up Blagojevich, or whether the former governor is such a scum bag that he needs no encouragement to lie. But, really now: Twenty-four counts of fraud and claims that he tried to sell a United States Senate seat and all the Government can prove is a lie to federal agents? This is a humiliating defeat for the Government. Period.

We say that our courts are open, but does the public really know about how many cooperation agreements are struck between the Government and witnesses behind closed doors in a judge's chambers, with half-truths then placed on the record in open court?

I've seen men sit in private and have a judge accept their cooperation agreement. Moments after the deal is struck, everyone appears in open court to accept a guilty plea. The client is asked by the same judge who just took the secret cooperation agreement whether anyone has promised him anything to induce him to plead guilty. The man says no, and no one mentions the Government's promise to seek a lesser sentence if the man testifies truthfully against someone else. Are we supposed to be amused by what amounts to judicially sanctioned deceit?

It's far too early for popping champagne corks in the Blagojevich case. The Government can, and most likely will, try him again on the 23-counts on which the jury could not agree. Most likely, the judge will not grant a motion to acquit on the false statement count. But at the very least, sentencing should be deferred on the false statement count until after the next trial in this matter. If Blagojevich is eventually acquitted of all counts, the judge should then send the Government home empty handed, and the Government should be forced to pay Blagojevich's legal bill.

In the meantime, hats off to Sam Adam Jr. It didn't look like he had a prayer from afar: but he did well. He almost succeeded in pulling his client out of the jaws of a lying beast with the audacity to prosecute those who do as the beast does.

P.S. The more I think about this the angrier I get. Here is a practice pointer: Don't bother bringing in a tape recorder to a meeting with a federal official, the feds won't let you record an interview. It is against policy? Question: Why don't you get to protect yourself when they interview you?