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December 16, 2008

Compare and Contrast

According to a New York Times news story, Blago's lawyer, who just coincidentally defends a lot of mobsters, says the case against his client is weak, because it's all "just words."

In an New York Times analysis piece, the Times asks (in the headline) In Blagojevich Case, Is It a Crime, or Just Talk?

Marching orders.

Now, you might object that the proposition being offered, the New York Times is duty-bound to seriously consider it. However, they seem over-eager to absolve Blago:

In the case of Mr. Blagojevich, it would be legal for the governor to accept a campaign contribution from someone he appointed to the Senate seat. What would create legal problems for him is if he was tape-recorded specifically offering a seat in exchange for the contribution. What would make the case even easier to prosecute is if he was recorded offering the seat in exchange for a personal favor, like cash, a job or a job for a family member.

Indeed the government has claimed the wiretaps show that Mr. Blagojevich told his aides that he wanted to offer the seat in exchange for contributions and for personal favors, including jobs for himself and his wife.

But talk is not enough. Any case will ultimately turn on the strength of the tapes, and whether the governor made it clear to any of the candidates for the Senate seat that he would give it only in exchange for something of value.

First things first; Blago was arrested for conspiracy, where "just words" are the foundation of the charge. A conspiracy is an agreement between two or more parties that a crime will be committed. Now, the law itself contains a provision to ensure that mere words are not enough to convict. Otherwise football fans who agree that a particular ref should be strung up and beaten with sticks would be potentially prosecuted for conspiracy to commit murder, conspiracy to kidnap, and conspiracy to beat someone with sticks.

That provision is that a conspiracy requires an "overt act" in furtherance of the conspiracy, which need not need be illegal in and of itself. If one agrees to do a a burglary, buying rubber gloves and a crowbar are overt acts in furtherance of that conspiracy, even though there's no law against buying either.

The "overt act" provision keeps conspiracy from being a crime based solely on "just words," and also separates those who are just bullshitting ("We should rob Fort Knox, you know that?") and those who are seriously agreeing to commit a crime.

In Blago's case, it stops being "just words" and turns into chargeable conspiracy when he begins scheduling fundraisers with businessmen and supporters of Candidate Number Five. As well as other acts. But that seems to be the clearest overt act.

On to the next misstatement of law. The NYT claims, "Any case will ultimately turn on... whether the governor made it clear to any of the candidates for the Senate seat that he would give it only in exchange for something of value." I don't know this area of the law well, but it seems to me this cannot possibly be the standard. If it's true that a charge can be made only if one makes it clear that government favor can be had only in exchange for something of value," then the law cannot ever be broken, because those wishing to exchange government favor for cash can simply avoid saying it so directly.

They can say "You have a very low chance of getting what you want, approaching 0%, if you do not pay me, and a very high chance, approaching 100%, if you do pay me," and they would be not eligible for prosecution, as the promised favor does not turn only on payment. After all, there are other factors, accounting for 1% of the decision-making loop; the payment itself "merely" elevates that chance from 1% to 99%.

If the NYT is right about this "only" business, then there basically is no law against government corruption, because you can always say there's a one in a million chance you'd get your favor without payment. In that case, it's not true that you'd "only" get the benefit in exchange for payment. You could win that one-in-a-million lottery if you don't pony up.

So the NYT works kinda-hard to make a hash of the law here. Coincidentally on the same day Blago's mob lawyer claims it's all "just words."

Analysis, sure. And fine distinctions have to be made in this murky area of the law, where logrolling and political favors in exchange for other favors are legal, but political favors in exchange for direct personal enrichment are not.

But please try to get the analysis right. And not merely take dictation from Blago's lawyer, who has a curious, and rather self-interested, concept of the law of conspiracy and solicitation of bribery.

Meanwhile... Tony Rezko's sentencing date had recently been set, indicating he wasn't talking to prosecutors, who would move to delay that date until they heard what he had to say and could decide whether or not it was worth urging leniency on the judge.

Well, that date has now been suspended.

A federal judge has indefinitely postponed the Jan. 6 sentencing for Tony Rezko, the prominent political fund-raiser and former adviser to Gov. Blagojevich.

The move this morning came after Rezko lawyers asked U.S. District Judge Amy St. Eve last week to throw out the sentencing date.

Rezko's request comes as he restarts talks with federal prosecutors. Those talks hit a stumbling block as Rezko asked to be let out of solitary confinement at the downtown federal lockup. He asked for a rushed sentencing in January.

Before you get excited: It's likely that Rezko is refusing to talk about Obama. After all, if he had something to offer here -- and was willing to spill -- he could have started talks with prosecutors last year.

So it's likely he's just offering more dirt on Blago. And he might have a lot to say only about that.

Prosecutors don't like leaving things to chance so even if they think they have a solid case against Blago, they'd certainly be willing to cut Rezko's sentence to sweeten the case a little more and raise their chances for a big verdict.



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posted by Ace at 05:51 PM

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