Blagojevich to take stand this week in corruption trial

CHICAGO — Rod Blagojevich has talked his way through two campaigns for governor, through years of public appearances and news conferences and, after his arrest in December 2008, through scores of television talk shows proclaiming his innocence.

But now comes the real test: Can he talk his way to a not-guilty verdict from the jury hearing evidence at his corruption trial?

The disgraced former governor will tell jurors that — despite all the outlandish things they heard in secretly recorded conversations during the government's case — he never intended to do anything illegal. He will also deny leading what prosecutors called a "political crime spree," insisting that he didn't get rich off his plans and that his advisers never told him that his ideas were against the law.

In doing so, however, Blagojevich might have to admit to some of the unseemly things prosecutors have alleged. He previously has downplayed his efforts to fill Barack Obama's vacant U.S. Senate seat as ordinary political dealmaking to help him secure support for his legislative agenda.

The government contends that he wanted to barter the post for a high-paying job that would allow him to escape crushing personal debt and a looming impeachment.

Any admissions will be managed by a defense team committed to a hybrid strategy on both the governor's insistence that he didn't intend to break any laws and that none of his political confidants — many of them lawyers — warned him that his plans could be illegal.

"The defense wants the jury to believe that he's the blowhard at the family dinner," said former prosecutor Ronald C. Smith, a professor at the John Marshall Law School. "You let him talk and talk, but you don't take him seriously."

The defense will try to give the jury the sense that the former governor was engaged in either routine political horse-trading or simply blowing off steam in recorded conversations about swapping Obama's Senate seat for a high-paying job or cabinet post.

The risky politics-as-usual strategy, however, amounts to an almost thorough repudiation of his self-styled image as a crusader and underscores the peril that his lawyers at least perceive he is in. When Blagojevich campaigned in 2002 to succeed Republican George Ryan, the Democrat vowed time and again to eradicate a corrupt political system that had permeated Illinois through a quarter-century of GOP rule.

Blagojevich is expected to take the witness stand as early as Tuesday.

"The defense in this case is a lack of willfulness," Blagojevich's lawyer, Sam Adam Sr., declared last week in federal court. "The defendant had no criminal intent in the things that he said and the things that he did."

Adam's statement signaled Blagojevich's plans to raise an affirmative defense, meaning he won't necessarily try to disprove what the government charges. Instead, he will try to remove intent from the equation, saying he generally followed the advice of his aides, many of whom went to law school.

The assertion could be backed up by the government's undercover recordings, which lack any instance of an adviser stopping Blagojevich, who also is a lawyer, and telling him he had crossed the line into illegal territory.

But by the same measure, the jury will not hear a conversation in which Blagojevich specifically asks an attorney whether he was doing something wrong and the attorney answers that Blagojevich was not. U.S. District Judge James Zagel repeatedly has noted that to raise an advice-of-counsel defense, the defendant must point to a specific conversation with a lawyer.

That defense is rarely used in public corruption cases. The strategy is more often deployed in patent and tax-fraud trials, because a lawyer's advice in those cases can play a key role in the defendant's actions and intentions.

"It is very limited," criminal-defense lawyer John Theis said. "You can't go out and rob a bank and then say, 'My lawyer told me it was OK to rob a bank."'

Zagel has likened part of Blagojevich's defense to a lawyer's silence at a party when another guest tells him that he'd like to poison his spouse.

"Can you infer from that that it's OK to murder your wife?" the judge asked.

Despite the judge's criticism, the defense will suggest that Blagojevich expected his aides to speak up if they thought he could be breaking the law. However, blaming advisers for not telling Blagojevich that his ideas might be illegal could be risky for the former governor, a former Cook County prosecutor.

"They have to be careful," Smith said. "If all the rest of these lawyers should have known better, then why didn't Rod?"

Many aides, including former Deputy Governor Robert Greenlee and former Chief of Staff John Harris, have faced defense questions about why they didn't tell Blagojevich that his plans were illegal, though they have law degrees. Zagel limited the questioning amid prosecutors' objections, but it didn't stop Blagojevich's lawyers from trying to plant that seed.

Experts, however, doubt the strength of that strategy, because the aides, many of whom were corporate lawyers not versed in criminal law, were not acting as attorneys in the conversations. Zagel repeatedly has ruled that they were advising on political matters, not legal ones.

"It's basically professional politicians chatter," Zagel said of one recorded conversation he blocked the defense from playing for the jury.

Greenlee, for instance, is heard on a number of calls in which Blagojevich bounces ideas off him about various political maneuvers. Greenlee never stops the conversations to tell the governor that his ideas could be illegal and, at times, seems to brainstorm with his boss.

A corporate lawyer, Greenlee testified that he told Blagojevich what he wanted to hear in order to make working with him easier. Other advisers testified to a similar desire to placate the then-governor by telling him what he wanted to hear for fear they'd be frozen out if they didn't.

"No one ever takes Blagojevich seriously in these tapes," said Leonard Cavise, a DePaul University law professor who has attended the trial.

That, too, plays into the defense strategy as the former governor tries to convince the jury that he didn't believe his actions were illegal. Legal experts said stressing the disgraced politician's ignorance of the law is a reasonable tactic for Blagojevich, who at times has spent the 19 months leading up to his trial playing the fool on reality TV programs and talk shows.

Thanks to his many television and radio appearances, the public believes he can't open a word-processing document on his computer, send a text message or stay focused on a task for very long. They also know that he loves to talk.

Name the topic, and the governor most likely has blathered about it on national television: baseball, his innocence, his enemies both real and imagined.

"They've portrayed him as a loudmouth freak, and that's a wonderful defense," Smith said.

Prosecutors have painted their own portrait of Blagojevich as an absentee governor with a questionable work ethic and a crass attitude toward some supporters. Aided by the secretly recorded calls and conversations, they have shown the jury a man so self-involved that he complains about not being able to afford his daughters' college tuitions after spending more than $200,000 on custom suits.

And in the end, that portrayal may play into the defense team's strategy, as Blagojevich tries to convince the jury that he might be an incompetent, insensitive blowhard, but he never meant any real harm. And, if he did, his lawyers should have stopped him.

"If he comes off as a buffoon, that's a good thing," Cavise said. "And it's really not too tough a row to hoe, because he is a buffoon."