Examining Potential Legal Strategy For Blagojevich

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Illinois Gov. Rod Blagojevich has denied any wrongdoing, and his legal team is presumably already at work preparing a defense against the corruption charges. What might the legal strategy look like? Criminal defense lawyer Stanley Brand talks with Steve Inskeep about potential defense strategies in the case.


The evidence against Governor Blagojevich includes tapes in which he says the vacant Senate seat is golden and that he won't give it up for nothing. Still, he's considered innocent until proven guilty. So we've been asking how he might defend himself against such charges. We called a prominent defense lawyer whose previous clients include Chicago Congressman Dan Rostenkowski, who went to prison. The lawyer's name is Stanley Brand.

Mr. STANLEY BRAND (Defense Lawyer, Brand Law Group): Anytime you have tapes, you have a very appealing salacious piece of evidence to present to a jury. The question is what actually happened, whether the scheme came to fruition or not. From what I heard, it didn't. No one was bribed. No job was obtained. Nothing concrete actually was achieved.

INSKEEP: Well, let's say that you're a defense lawyer. Let's say that Governor Blagojevich called you up and said, well, Mr. Brand, you've got some experience in this area. Where do we start with this? I've got a little problem here. What would you tell him?

Mr. BRAND: Yeah, I guess my theory of defense from, you know, 30,000 feet, as they say, would be to put this all in context in front of a jury and say, you know, this all sounds very scurrilous and untoward. However, nothing ever happened. No one got any money. No one got a job. And it's distasteful, but it didn't rise to a crime.

INSKEEP: You can say that because prosecutors interrupted it. But can't prosecutors say there was clearly a conspiracy here, and the only reason no one got a job is because we stopped it?

Mr. BRAND: Sure, that's the government's side of the case that the conspiracy doesn't have to be completed and have its end achieved for it to be a conspiracy that's illegal under federal law. So that's where you have the horse race.

INSKEEP: I will say that just as a layman watching Prosecutor Fitzgerald lay out his case earlier this week in a press conference with great moral outrage, I did wonder, again as a layman, is this illegal if it happens? Isn't it pretty normal that politicians trade favors like this?

Mr. BRAND: I think the trading of favors and asking of accommodation is part and parcel of the political process. What's different is when money intrudes. And so the question is was he really trading official acts for something of value, namely money or a job? That changes the character of it.

INSKEEP: Could he make an argument that he was just talking?

Mr. BRAND: Yeah, you know, they made that defense in the Abscam cases. You know, they were just blowing off steam. That's tough in front of the jury when there are tapes and there are steps that have been taken that appear to what we call, you know, overt acts in furtherance of the conspiracy that actually came about.

INSKEEP: You're going to need to remind people what the Abscam case was.

Mr. BRAND: Abscam was an undercover operation run by the FBI with FBI agents posing as sheiks and offering bribes, basically, to members of Congress in return for legislative action.

INSKEEP: And so that defense, I was just talking, I was just blowing off steam, was made there. And of course you still ended up with people going to prison.

Mr. BRAND: People - everybody convicted.

INSKEEP: And I'm thinking of the famous tapes of Richard Nixon in the White House where, of course, you did have a lot of illegal acts that were committed. But you also had the president saying the most astounding, alarming things. And it doesn't appear that his staff necessarily acted on all of them.

Mr. BRAND: No, but they were all convicted. Halderman, Ehrlichman, you know, Dean. All the people in the inner circle were convicted of conspiracy and obstruction of justice on very similar grounds.

INSKEEP: So it's not likely, it sounds like - maybe there's a chance, but not a great chance that the governor could say in his defense, hey, I'm just kind of twisted in private, and my staff knows this, and I say all kinds of things, and they don't necessarily act on them.

Mr. BRAND: Yeah. But, you know, it's a tough defense, I think.

INSKEEP: Well, if he was asking you for advice now, would you say, Governor, plead out, you've got no chance here?

Mr. BRAND: No, I wouldn't because I think there are some issues about the wiretaps. There are always issues about how the government conducted the investigation, whether some of this evidence actually will get into evidence, and you're better off fighting to get some leverage.

INSKEEP: So that's the first thing you'd do as a defense lawyer is fight over the evidence before the trial even begins.

Mr. BRAND: Yes.

INSKEEP: And then find out if you've got a situation where you might be able to strike a deal for your client.

Mr. BRAND: Yes, assuming you don't learn things in the course of that process that are more helpful, in which case maybe you take a roll of the dice and go to trial.

INSKEEP: Some legal advice from Stanley Brand, a criminal defense lawyer in Washington, D.C. We should mention that the bloggersphere has already reached a judgment of sorts in this case. More that a dozen people have now put the Illinois Senate seat up for sale themselves. They're holding mock auctions on eBay. One ad reads, "Used Illinois Senate seat. All wood and leather. Willing to deal on this one. Please be advised that I will be away from my office for a while." Yesterday the fake bidding had reached over 99 million dollars.

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Blagojevich Latest High-Profile Case For Fitzgerald

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When Chicago's U.S. attorney, Patrick Fitzgerald, announced corruption charges against Illinois Gov. Rod Blagojevich on Tuesday, it was just the latest in a string of high-profile takedowns for the prosecutor.

In the past eight years, Fitzgerald has become one of the most well-known federal prosecutors in the country, handling cases against terrorists, mobsters, and — most notably — the vice president's chief of staff.

Of the more than 90 U.S. attorneys in the country, some are chosen for their political connections. Others are appointed as a reward for making donations to a campaign. Fitzgerald was chosen for his reputation as a prosecutor. He earned that reputation over 13 years as an assistant U.S. attorney in New York. One of his most significant cases there was the prosecution of Osama bin Laden and other al-Qaida figures for the 1998 bombings of U.S. embassies in Kenya and Tanzania.

Aitan Goelman, who is now a defense attorney in Washington, D.C., was a prosecutor in New York with Fitzgerald.

"If you are a criminal defendant or a criminal suspect, you would rather have pretty much anybody else than Pat Fitzgerald on your case," Goelman said. "He is very dogged. He is very organized. He learns his cases, so he has just an encyclopedic knowledge of the facts and the evidence, and he is a quick study."

When President Bush appointed Fitzgerald to lead the U.S. attorney's office in Chicago in 2001, Fitzgerald inherited a massive public corruption investigation. It led to the arrest of Illinois Gov. George Ryan.

Fitzgerald announced the charges against Ryan at a press conference much like the one he held Tuesday. "What we're alleging," Fitzgerald said, "is that basically the state of Illinois was for sale."

Patrick Collins was one of the lead prosecutors on the Ryan case. He says that after the indictment, Fitzgerald asked for a list of all the agents who'd been involved. Fitzgerald wanted to thank them each personally.

"For agents, it's a little bit like meeting Elvis," Collins said. "When folks got an 'atta boy' letter from Pat, it very quickly got framed and went up on the wall."

When Ryan was sentenced to prison in 2006, Fitzgerald again stood in front of the cameras and expressed a hope, saying "that somewhere out there, at some point, people would stop and think and look at what's happening and realize how horrible corruption is."

Fitzgerald concluded, "Maybe at some point it'll sink in, and this will stop."

Of course, corruption did not stop, and Fitzgerald's reputation grew.

Investigating The Plame Leak

In 2005, the Justice Department was investigating which Bush administration official leaked the identity of a CIA agent. Attorney General John Ashcroft recused himself, so oversight of the case went to Jim Comey — the deputy attorney general and a good friend of Fitzgerald.

Comey announced that he had delegated to Fitzgerald "all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation." Comey said Fitzgerald would not have "to come back to me or anybody else at the Justice Department for approvals."

Some people have argued Fitzgerald was given too much power. They say he went overboard when New York Times reporter Judith Miller was imprisoned for refusing to reveal a source, and when he eventually charged Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby, with lying under oath.

Fitzgerald defended his actions. At a press conference announcing the Libby indictment, he said the truth is the engine of the judicial system.

"Any notion that anyone might have that there is a different standard for a high official is upside down," Fitzgerald said. "If these facts are true, if we were to walk away from this and not charge obstruction of justice and perjury, we might as well just hand in our jobs."

Libby was eventually convicted on all but one of the five counts.

The Lawyer's Background

Fitzgerald has never sought out the limelight. He almost never agrees to interview requests. He did make one exception last year, for a game show for the NPR program Wait Wait ... Don't Tell Me!.

When asked why he agreed to be on the show, Fitzgerald replied, "Literally, I was trying to get tickets to the show."

On the program, Fitzgerald talked about growing up in Flatbush in Brooklyn, N.Y., where he worked as a janitor and a doorman. He described it as "an interesting experience."

"It was fun," he said, "but you had people calling up on the Fourth of July complaining about fireworks, asking you to stop them. And you said yes, and you hung up."

New presidents traditionally replace U.S. attorneys with their own appointees, but President-elect Obama and Illinois Sen. Dick Durbin have both suggested that they will probably ask Fitzgerald to remain in the job.



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