As Rod Blagojevich's attorneys prepare to make their last pitch to jurors, their closing arguments may come down to this: The former Illinois governor wasn't capable of doing anything but talk. And talk.
In the words of Blagojevich himself, he may have proposed some "stupid" ideas that were secretly recorded by the FBI, but nowhere is there any evidence he took a single "corrupt penny."
That leaves prosecutors with the challenge of persuading the jury that, as ineffective as he might have seemed, Blagojevich wasn't just talking. He was conspiring. And conspiracy is a crime.
None other than U.S. District Judge James B. Zagel alluded to the question Thursday when he tried to summarize the arguments that jurors will likely hear from both sides on Monday.
The tapes "really have a lot of talk that seems like blowing off steam ... as opposed to doing," the judge said at a hearing where he refused to dismiss the charges.
But if Zagel suggested that Blagojevich was "desperate" and perhaps delusional, the judge also made it clear that the defendant's lack of success in obtaining money or a new job may not matter.
"Conspiracy is a crime that involves people talking to each other," he said. "You can have a conspiracy entered into by fools and bumblers ... and it's still a conspiracy."
Blagojevich attorney Lauren Kaeseberg insisted that the prosecution's case was built on talk. "That means if I've researched a crime, I've attempted to commit that crime? If I've talked about a crime I've attempted to commit that crime?"
But the prosecution can wage a counterargument: That even if Blagojevich's comments sounded like jokes — wondering what life would be like if he became ambassador to India, or suggesting that Barack Obama might ask him to join the White House cabinet — that talk did trigger action.
Prosecutors said Patti Blagojevich did research the salary of a private foundation as she spoke to her husband on the phone. And one of Blagojevich's top aides did research ambassadorships.
Blagojevich's attorneys have sought to exploit some of the more embarrassing revelations of the trial — that their client was so lazy he showed up to his office as little as two hours a week and sloughed off so much of his work that a top aide actually signed bills into law.
How, they might ask jurors, could the same man who hid in the bathroom to avoid discussing the state budget be capable of shaking down the president in exchange for appointing Obama's choice to his old seat in the U.S Senate?
And why didn't Blagojevich follow up on his threats to punish companies that didn't find his wife a job by cutting them off from any more state business? Why didn't he make good on threats to kill a Wrigley Field deal sought by the Chicago Tribune's parent company if the paper didn't fire writers who had blasted him on the editorial page?
"They could get some mileage out of that," said Joel Levin, a Chicago attorney and former federal prosecutor. "Given his behavior in the past few months, they could say he's something of an airhead and a flake who runs off at the mouth, (that) it's meaningless babble."
But, he said, the defense team will have trouble if they try to convince jurors that Blagojevich wasn't serious.
"When you listen to his voice on those tapes ... it's all about money for himself, this is what he wanted and he wasn't joking," Levin said. "If you listen to his intonation, there is no indication of a joke."
Albert Alschuler, a law professor at Northwestern University, said that if Blagojevich's attorneys suggest, as Blagojevich did, that just because no money changed hands there was no crime committed, it may backfire.
"If you conspired to conduct affairs through bribery, that's enough" to convict Blagojevich, he said. "You don't need money to change hands for a conspiracy."
One of the biggest questions is the potential effect of Blagojevich's decision not to testify — even after his attorney promised jurors he would.
Sam Adam Jr. suggested to reporters that he will have to bring it up. He might say that even by taking the stand, Blagojevich would have acknowledged prosecutors had proven their case.
"Sam Adam will lie through his teeth (and say) we decided the case was so weak he didn't have to testify," Alschuler said. "The reason is this guy has so much to hide he couldn't take the stand."
The problem for prosecutors, he said, is that they are prohibited from even broaching the subject.
The only question is how jurors will reflect on that.
"The judge is going to instruct them not to infer anything, but you can't erase that from your memory," Levin said. Nor, he added, can jurors forget that it was Adam who promised them Blagojevich would take the witness stand.
On Friday, defense attorneys and prosecutors will meet to discuss the instructions jurors will receive before beginning deliberations.
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