In Blagojevich Case, Is it a Crime, or Just Talk?

WASHINGTON — When Patrick J. Fitzgerald, the United States attorney in Chicago, announced the arrest of the Illinois governor, Rod R. Blagojevich, Mr. Fitzgerald said he had acted to halt a political crime spree that included what he called an “appalling” effort to sell off the Senate seat vacated by President-elect Barack Obama. But now some lawyers are beginning to suggest that the juiciest part of the case against Mr. Blagojevich, the part involving the Senate seat, may be less than airtight. There is no evidence, at least none that has been disclosed, that the governor actually received anything of value — and the Senate appointment has yet to be made. Ever since the country’s founding, prosecutors, defense lawyers and juries have been trying to define the difference between criminality and political deal-making. They have never established a clear-cut line between the offensive and the illegal, and the hours of wiretapped conversations involving Mr. Blagojevich, filled with crass, profane talk about benefiting from the Senate vacancy, may fall into a legal gray area.

Robert S. Bennett, one of Washington’s best-known white-collar criminal defense lawyers, said Mr. Blagojevich faced nearly insurmountable legal problems in a case that includes a raft of corruption accusations unrelated to Mr. Obama’s Senate seat. But Mr. Bennett said the case raised some potentially thorny issues about political corruption.

“This town is full of people who call themselves ambassadors, and all they did was pay $200,000 or $300,000 to the Republican or Democratic Party,” said Mr. Bennett, referring to a passage in the criminal complaint filed against the governor suggesting that Mr. Blagojevich was interested in an ambassadorial appointment in return for the Senate seat. “You have to wonder, How much of this guy’s problem was his language, rather than what he really did?”

In presenting his case, Mr. Fitzgerald said Mr. Blagojevich had crossed the line from deal-making to criminality, citing an example in the complaint in which the governor discussed with an aide obtaining a $300,000-a-year job from the Service Employees International Union in return for naming a candidate to the seat.

“We’re not trying to criminalize people making political horse trades on policies or that sort of thing,” Mr. Fitzgerald said. “But it is criminal when people are doing it for their personal enrichment. And they’re doing it in a way that is, in this case, clearly criminal.”

But politicians routinely receive political contributions in return for their decisions, whether they involve making appointments or taking a stand on legislation. Lawmakers vote in favor of bills and steer appropriations backed by their donors without fear that prosecutors will bug their offices and homes.

And while prosecutors have brought increasing numbers of political corruption cases in recent years, they have done so using laws that make it a crime for an official to deprive the public of “honest services.” The cases are based on statutes that never define exactly what conduct might be illegal and do not require proof of a bribe or a quid pro quo to establish criminal wrongdoing.

What those statutes do require is evidence that an official at least tried to seek something of value in return for an official action.

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.

Several lawyers cautioned that the complaint presented last week was a snapshot of the evidence that Mr. Fitzgerald had amassed so far, in an investigation that is continuing.

In moving to arrest Mr. Blagojevich on Dec. 9, Mr. Fitzgerald acted without having presented his case before a grand jury. He is now likely to use such a panel to obtain additional witness testimony exploring whether anyone, including anyone in the Obama camp, had specific discussions with the governor’s office about filling the vacancy.

Mr. Fitzgerald’s decision to bypass a grand jury initially could signal a belief on his part that he did not yet have a fully prosecutable case on his hand, though it appears to have been prompted at least in part by the publication in The Chicago Tribune on Dec. 5 of an article that tipped off Mr. Blagojevich that investigators were listening in on his conversations.

Mr. Fitzgerald has also said he had been worried that if he did not intervene, Mr. Blagojevich might go ahead with some of his schemes, including appointing a successor to Mr. Obama.

In the wiretaps cited in the complaint, Mr. Blagojevich talked about what he said was an urgent need for political contributions and favors, but it was not clear whether he took concerted action to actually obtain anything in return for the seat. Several lawyers said Mr. Fitzgerald might need more evidence to prosecute Mr. Blagojevich over the issue.

“It’s a very difficult case for a number of reasons; not the least is the nebulous nature of the charges and the inherently difficult issues when you’re talking about a person executing his First Amendment right to promote a particular politician,” said Michael D. Monico, a former federal prosecutor who is now a criminal defense lawyer in Chicago.

“Merely thinking about something is not a crime,” said Mr. Monico, a lawyer for Christopher Kelly, a former Blagojevich fund-raiser who was indicted last year on tax charges “Just talking about something is not a crime. You need another action for someone to commit a crime.”