Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

The recap of the trial thus far of former Illinois Governor Rod Blagojevich, from the coverage of the Chicago Tribune's "Blagojevich on Trial" Blog and the Springfield State Journal-Register's Blagojevich trial coverage continues.

Thursday, June 17, 2010: Former Democratic Party fundraiser Joseph Cari testifies that Blagojevich spoke with him about presidential ambitions and getting contributions from businesses in exchange for awarding state business. Cari states that Antoin “Tony” Rezko told him he made decisions as to who got state work. Cari also testifies that he pressured venture capital firm JER, which was seeking to gain an $80 million allocation from Illinois’ teacher’s pension panel, to hire a consultant designated by Rezko, who would be paid a large finder’s fee. The defense gets Cari to admit that Stuart Levine—not Blagojevich—told Cari that JER would not receive the pension investment business unless it hired the consultant. Cari does admit that JER received the allocation even though it did not ultimately hire the consultant. Blagojevich’s attorneys point out that Cari did not tell federal investigators about his alleged conversations with Blagojevich until 82 days after they first contacted him, and attempts to portray Cari as lying to prosecutors in order to obtain a plea deal. Former Illinois Director of Boards and Commissions Jill Hayden testifies that she gave the most weight to recommendations by Rezko and Chris Kelly in selecting candidates to fill State boards. Rezko and Kelly selected five of the nine member Illinois Finance Authority (IFA). Hayden testifies that Rezko also called her and told her Levine needed to be reappointed to the Illinois Teacher’s Retirement System Board. Blagojevich aid Alonzo “Lon” Monk subsequently contacted Hayden and told her not to take any more calls from Rezko because the FBI had tapped his phones. Ali Ata, former head of the IFA, testifies that, in August 2002, he met with Blagojevich, Rezko, Kelly and legislator Jay Hoffman and gave Blagojevich $25,000 in return for a position in the administration. He states that gave Blagojevich another $25,000 in 2003 at Rezko’s request, and that Blagojevich had thanked Ata and said that he knew he was considering a job with the administration and that it had better be a job where Ata could “make some money.” Ata testifies that Rezko also came to him while he was Chief of the IFA seeking $16 million to refinance his restaurant businesses, stating that he would get the Governor to approve it. Ata states that he did not support the plan. Ata testifies that Rezko promised him a job on the Capital Development Board, but that the position was given to someone else. He also states that Rezko became increasingly paranoid about being bugged by federal investigators. On cross-examination, the defense attempts to have Ata admit that Blagojevich himself never informed Ata that he was receiving a State post in exchange for his campaign contributions.

Monday, June 21, 2010: John Johnston, owner of the Maywood and Balmoral race tracks, testifies that Lon Monk came to see in December of 2008 and asked him for a contribution right before the Governor signed legislation extending subsidies for race tracks. E-mails are introduced indicating that former U.S. Representative and White House Chief of Staff Rahm Emanuel supported Blagojevich in 2006 in exchange for the State authorizing a $2 million grant for construction of athletic fields for the Academy for Urban School Leadership, a school in Emanuel’s district. Former Deputy Governor Bradley Tusk testifies that Emanuel contacted him when the grant money for the school was held up, and that Blagojevich’s advisors said that the Governor wanted Emanuel’s brother, a wealthy Hollywood agent, to hold a fundraiser for the Governor. Tusk requested that Emanuel write a letter to the Chicago Tribune in support of the Governor’s programs. He also testifies that he met frequently with Rezko and Kelly during his tenure as Deputy Governor, and that he signed checks for Blagojevich when the Governor was not present. John Harris, Blagojevich’s Chief of Staff, testifies that Blagojevich had stated to him that he wanted to run for President. Harris testifies that Blagojevich directed him to block two investment firms from getting any State business on the grounds that the firms had failed to hire the Governor’s wife, Patti Blagojevich. Harris also testifies that Blagojevich was interested in finding a State position for his wife, including on the Illinois Pollution Control Board.

Tuesday, June 22, 2010: Harris testifies that Blagojevich became increasingly worried about his finances, including his legal bills of approximately $1.7 million from the law firm of Winston & Strawn. Blagojevich paid his legal expenses from his campaign funds. Harris testifies that Blagojevich considered appointing Illinois Senate President Emil Jones, and even himself, to the U.S. Senate seat vacated by President Barack Obama. However, when Jones caused an ethics bill which Blagojevich opposed to pass the Senate, Blagojevich allegedly told Harris that there was no way Jones would get the seat. Harris testified that he had conversations with Blagojevich regarding “how much” he could get for the Senate seat, including from wealthy businessmen Blair Hull and J.B. Pritzker. Harris testified that he and General Counsel Bill Quinlan told Blagojevich not to consider such ideas. Harris testified that Rahm Emanuel telephoned him and told him that President Obama was interested in having Valerie Jarrett, former Chairman of the Chicago Transit Authority, appointed to fill the seat. The prosecution plays an audio recording of a conversation between Blagojevich and Harris regarding Emanuel’s suggestion of Jarrett. Blagojevich asks Harris on tape what he can get for appointing Jarrett, including a potential appointment as Secretary of the U.S. Department of Health and Human Services.
 

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President Obama is expected to announce today his nomination of Solicitor General Elena Kagan to succeed Justice John Paul Stevens. Solicitor General Kagan has been one of the presumptive leading choices to replace Justice Stevens ever since the Justice announced that he was stepping down. Ms. Kagan has drawn criticism from both the right and the left of the political spectrum, and the Senate confirmation process is expected to involve some controversy--as it invariably does.

Ms. Kagan's distinguished background is well known. She graduated magna cum laude from Harvard Law School in 1986, clerked for Supreme Court Justice Thurgood Marshall, worked at the Washington, D.C., law firm of Williams & Connolly, was a professor at the University of Chicago, worked as Associate Counsel and Deputy Assistant to the President for Domestic Policy during the Clinton Administration before returning to Harvard as Dean of the Law School in 2001. In March 2009, President Obama named Ms. Kagan as Solicitor General for the United States.

Less well known is Solicitor General Kagan's views on criminal law. As Professor Douglas Berman of Ohio State University School of Law observes on his blog, Ms. Kagan lacks much of a record on criminal law issues which routinely come before the court.

There are indeed very few reported criminal cases which Ms. Kagan has been involved with during her career. Interestingly, many of the cases that do exist have gone against Ms. Kagan or against the government. While at Williams & Connolly, Ms. Kagan represented the defendant-appellant in the appeal of  U.S. v. Chuang, 897 F.2d 646 (2d Cir. 1990) before the U.S. Court of Appeals for the Second Circuit, in which the Court held that the defendant, who was both a bank officer and attorney, possessed no reasonable expectation of privacy in bank documents which were not found in his office, since banking is a closely-regulated business and the documents were subject to routine inspection by the Office of the Comptroller of the Currency. Much later, in Kucana v. Holder,130 S.Ct. 827 (2010), the Supreme Court held, contrary to the position of the Solicitor General, that motions to reopen immigration proceedings before the Board of Immigration Appeals were subject to judicial review. Next, in Johnson v. U.S., 130 S.Ct. 1265 (2010), the Court reversed the petitioner's conviction for possession of ammunition by a convicted felon under 18 United States Code Section 922(g)(1), holding that the petitioner's conviction for simple battery under Florida was not a "violent felony" which could be used to enhance the petitioner's sentence under the Armed Career Criminal Act in 18 United States Code Section 924. In addition, as we have noted, the Court also ruled against the Administration in Bloate v. U.S., 130 S.Ct. 1345 (2010) in holding that time spent preparing pretrial motions is not automatically excludable from the Speedy Trial Act, 18 United States Code Section 3161 et seq. And most recently, in U.S. v. Stevens, --- S.Ct. ----, 2010 WL 1540082 (April 20, 2010), the Court found against Solicitor General Kagan in holding that 18 United States Code Section 4, which criminalized  the commercial creation, sale, or possession of certain depictions of animal cruelty, was substantially overbroad in violation of the First Amendment.

The lack of an extensive background in criminal issues is certainly no barrier to a potential distinguished and exceptional service as a Supreme Court justice. Indeed, it is hoped that the contrary results and setbacks which Solicitor General Kagan has experienced in her few forays into the field have encouraged a more nuanced and open minded view on criminal issues, or at least one that is not a mere rubber stamp of law enforcement and government actions.

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