As Blagojevich Pleads Not Guilty, Some Prosecution Moves Are Questioned

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Charles Rex Arbogast / AP

Former Illinois governor Rod Blagojevich arrives at federal court for his arraignment on federal racketeering and fraud charges in Chicago

Correction Appended: April 15, 2009

Ever since Rod Blagojevich was roused out of bed one cold December morning, federal prosecutors have done their best to portray their colorful corruption case against the now former Illinois governor in the starkest possible terms. Normally tight-lipped U.S. Attorney Patrick Fitzgerald declared that Blagojevich, who was caught on tape allegedly trying to sell Barack Obama's Senate seat, had embarked on a "political corruption crime spree [that would] make Lincoln roll over in his grave." When the actual indictment came down April 2, the government was much more low-key, with no accompanying press conference or statement.

But the charges themselves are, if anything, more damning. The indictment against Blagojevich, his older brother Robert and four associates, which includes charges of racketeering conspiracy, extortion conspiracy, attempted extortion, making false statements and wire fraud, effectively paints the impeached ex-governor as the head of a vast criminal enterprise. "With RICO, these defendants are seen as no better than a street gang, common thugs," says Ronald Smith, a former prosecutor and current law professor at John Marshall Law School who has taught federal criminal law for 15 years.

But as Blagojevich and his brother pleaded not guilty at the arraignment in Chicago on Tuesday, it had already become clear that this high-profile case was anything but a simple matter. For starters, the charge that has drawn the most attention, his alleged attempt to auction off Obama's Senate seat, may not be one of the strongest charges. A jury may be more susceptible to the allegation that the "Blagojevich Enterprise" tried to shake down officials at Children's Memorial Hospital in Chicago's Lincoln Park neighborhood for campaign contributions. More precisely, an executive at the hospital was urged to hand over $50,000 in campaign money in exchange for $8 million in state Medicaid reimbursements. (Read "The $5M Senate Seat.")

"I actually think that the children's hospital charge would worry me even more," says Andrea Lyon, a law professor at DePaul University and former head of the Illinois Association of Criminal Defense Lawyers. "Holding up sick children and the doctors caring for them seems like an emotional matter that's not going to play well for him before a jury," Lyon says. If that's not heart-wrenching enough for prospective jurors, Blagojevich et al. are also accused of trying to shake down a teachers' retirement fund, withholding state work from firms that would not do business with his wife and trying to extort money from a Congressman looking for funds for a school. That Congressman has reportedly been identified as Rahm Emanuel, Obama's current chief of staff.

Blagojevich's defense has a daunting task, especially given that some co-defendants as well as a host of other politically connected officials are reportedly lining up to cooperate with the government. Still, Blagojevich maintained to reporters after Tuesday's hearing, "I did not let the people of Illinois down. That is the beginning of me trying to prove my innocence and clear my name and be vindicated of what are inaccurate allegations." If found guilty of the 16 criminal counts against him, Blagojevich could face up to 20 years in prison and fines in the hundreds of thousands of dollars.

Yet some of the prosecution's choices have left certain legal observers wondering just how strong the case is. The prosecution, for instance, decided not to seek charges against Blagojevich's wife Patti — a fact that surprised many, since she too is named throughout the charges. "It could be seen as the government going too far even if they do have the goods on her," notes Smith, who adds that indicting Patti Blagojevich could leave their children with two jailed parents. "You have to draw the line somewhere, and perhaps dragging in the wife would bring up the sympathy factor that could taint the whole case."

The courtroom where Blagojevich was arraigned on Tuesday has also raised questions. U.S. District Judge James Zagel, who is presiding over the case, is a Reagan appointee generally seen as prosecutor-friendly, a no-nonsense jurist who has little patience for allowing his courtroom to be turned into a circus. Some observers wonder if Fitzgerald's team shopped around for the right judge and made sure the case landed with Zagel by marrying Blagojevich's case with that of William Cellini, 74, a downstate businessman and power broker who raised money for Blagojevich and is currently under indictment — and whose case is already before Zagel.

Cellini, of Springfield, is accused of trying to shake down the Teachers' Retirement System and other firms for campaign funds for Blagojevich, and also of trying to extort one of the producers of the Clint Eastwood film Million Dollar Baby. He has been under indictment since October, the 13th person charged in the ongoing Illinois pay-to-play scandal that prosecutors said traces back to even before Blagojevich became governor. Cellini has denied any wrongdoing. (Read "The Fall of the House of Blagojevich.")

"I find myself disturbed by what seems to be forum-shopping here," says Lyon. "Cellini seems pretty tangential, but it appears that there is a pattern of the prosecution going for a judge that might go their way. If you're Cellini, do you really want to be tried with Blagojevich?" Indeed, Dan Webb, a former U.S. Attorney and Cellini's lawyer, has stated that his client will seek a separation of the cases.

But prosecutors got another benefit from tying the case with Cellini's. One of Blagojevich's attorneys, Terence Gillespie, also happens to be representing Cellini. Because of the conflict of interest, Gillespie had to step down from the former governor's defense team. That made him the second high-profile defense lawyer to drop Blagojevich since the saga began. Gillespie's partner, renowned Chicago criminal defender Ed Genson, left the case in late January after becoming frustrated that Blagojevich wouldn't heed his advice to stop giving interviews. Before he gave up the case, Genson complained that the surreal atmosphere at Blagojevich's impeachment trial had become like Alice in Wonderland. Federal prosecutors just have to hope it doesn't get any stranger.

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The original version of this article misstated that William Cellini is accused of trying to shake down the Teachers' Retirement System and other firms for $1.5 million in campaign funds for Blagojevich. No specific dollar figure is cited in the indictment against Cellini.