In a 169-page court document filed late Tuesday night, Assistant US Attorney Debra Riggs Bonamici wrote that the Blagojevich verdict was “supported by abundant evidence, and the defendant received a fair trial.”
It took two trials for the federal government to win a conviction against Mr. Blagojevich. In June 2011, he was convicted of 17 counts of wire fraud, attempted extortion, bribery, the conspiracy to commit extortion, and the conspiracy to commit bribery – as part of an attempt to sell President Obama’s former Senate seat in exchange for political favors. A first trial, held in 2010, ended in one conviction – lying to the Federal Bureau of Investigation – but otherwise, the jury was hung on all counts.
He is currently in federal prison in Littleton, Colo., and may be released as early as January 2024.
In the appeal, filed in July with the Seventh US Circuit Court of Appeals in Chicago, Blagojevich attorneys argued that his “proposed exchange [for Mr. Obama’s former Senate seat] was an arm’s length political deal ... between himself and Barack Obama which Blagojevich believed was not only lawful, but also in the public interest.”
Blagojevich, they suggested, was willfully ignorant of doing anything unlawful, made evident by the fact that he “made no effort to conceal his plan but discussed it openly with his advisors.” Another fact they relied upon to support their claim is that Blagojevich did not personally profit from the scheming.
Tuesday’s filing by prosecutors attempted to dismantle that argument, calling it “an extraordinary claim.” His actions, Ms. Bonamici writes, “fit comfortably within the core of conduct regularly prosecuted under the statutes of conviction.”
“Blagojevich offers, and research reveals, no legal authority supporting his contention that an exchange of official acts for money or property is authorized or insulated from prosecution,” she also says. “No matter the price he charges, a public official who sells his office engages in crime, not politics.”
The difficulty for Blagojevich, says Shari Seidman Diamond, a law professor at the Northwestern University School of Law in Chicago, is convincing the appeals court that he was not aware that pay-to-play is a crime, especially because he was an attorney himself.
“There’s a difference between being aware of the acts you’re doing and the goals you’re trying to accomplish and being aware there’s a statute that forbids it. I think it’s very plausible he was and very hard to believe he wasn’t,” Professor Diamond says.
Prosecution documents also address Blagojevich’s argument that his conviction was based on a bias by US District Judge James Zagel, the presiding judge, who allowed only a small number of the 33 recordings the defense wanted aired for the jury. The defense claimed the recordings were “highly relevant.” At the same time, government attorneys were allowed to air their requested total of 70 recordings.
The tapes the defense requested, Bonamici writes, would have confused jurors because they “needed background and context” to understand “cryptic statements meant to be unintelligible to eavesdroppers.”
“In this case, the need for explanations concerning recorded conversations was greater than usual in light of the extraordinary number of calls in which ploys were used to confuse and mislead outsiders – and other participants,” she writes. “As a result, virtually none of the recordings could reliably be understood without a participant to explain what was said .... The exclusion of this evidence in no way affected the defendant’s ability to present a defense.”
Blagojevich attorneys now have a final opportunity to rebut the government’s response before a three-judge panel issues a ruling, which could take several months.
