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Legal Observers Say Feds Case Against Gov. Blagojevich May Not Be a Sure Thing

By Jon Perkins
ticklethewire.com

At first blush the case against scandal-plagued Illinois Gov. Rod Blagojevich would appear to be overwhelming.
Not so fast say some criminal defense lawyers. Though they say the public evidence against Blagojevich appears strong –hours and hours of damning conversations — truth is the tapes are only talk.
Plus, the governor has hired a formidable attorney in Ed Gensen, who represented singer R. Kelly in a child pornography trial that resulted in the entertainer’s acquittal.
The federal government, in a criminal complaint, accuses Blagojevich of trying to sell the Senate seat being vacated by President-elect Barack Obama along with other public corruption.
But some attorneys see the allegations as being tough to prove.
“The tapes are just tapes,” said Michael Helfand of Chicago-based FindGreatLawyers.com.
Helfand suggests that a possible defense for Blagojevich could be that nothing actually happened in terms of the selling of the Senate seat; No quid pro quo.
“The logical defense is he was joking or talking smack in the office,” Helfand said. “It’s one thing to say the guy is slimy,” he said and another to prove he’s criminal. Another tactic the defense might try, he said, is to challenge whether the government had probable cause to secure wiretaps.
All that said, he does not say that Blagojevich is in the clear. In fact, Helfand thinks the more damaging charges against the governor will likely come from the 2002-2003 period for which the government has witnesses, including financier-fundraiser Antoin “Tony” Rezko, whose sentencing on a corruption conviction has been delayed. It has widely been reported that he is assisting prosecutor Patrick Fitzgerald’s investigation of the governor in exchange of a lesser sentence.
“Everybody’s talking about the juicy stuff,” Helfand said. “Right now, all it is is threats of bravado, smack talk. And smack talk isn’t a crime.”
Andrew Leipold, a professor of law at the University of Illinois, said Blagojevich’s defense could be he “didn’t do what they said he did.”
He said that it might not be criminal if the governor was only talking about rewarding people who have helped raise money for his campaign, regular political horse trading. Leipold said that kind of practice is common in business, at charities and nonprofit agencies.
“That’s the way politics works,” he said. Presidents often pay back major donors with ambassadorships. He said what could also be a gray area in the case is if Blagojevich was talking about raising political
funds and not money for personal gain.
He also said that Blagojevich could have been just talk, but in this case just talk could be damning. “Talking smack in legal circles is sometimes called conspiracy,” he said. “That’s where the rubber meets the road.”
At any rate, Leipold said, the case is a black mark against the state. “It’s bad for Illinois when they’re playing the theme from “The Godfather” in the background when you’re talking about this case on the radio.”
Attorney Likely to Challenge Legality of Wiretaps (AP)

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