Rod Blagojevich's defense team has been saying throughout his federal corruption trial that the former governor did not have the requisite criminal state of mind when he hatched what the prosecution calls "pay-to-play" schemes, including trying to sell the a U.S. Senate seat, because he was consulting with his lawyers at all times.
We're likely to hear a lot about the so-called "advice of counsel" defense during closing arguments, but it is a red herring.
"What we hope to destroy is any inference that the governor acted willfully," Sam Adam, Sr., said outside of court last week, before the defense announced it would be presenting no witnesses. "The fact that he had the advice of counsel shows that he had no intent to violate the law."
There really is no such defense in the context of this case. Some courts have recognized the theory, usually involving the federal tax code. Courts are divided on when or whether it can be used, although the federal appeals court in Chicago has set some ground rules if it is to be attempted.
True, most of Blagojevich's fundraisers and aides had law degrees. But the prosecution's wiretapped conversations show that Blagojevich was telling his aides, including John Harris, Bob Greenlee, Bradley Tusk, Lon Monk and John Wyma, among others, how to raise campaign funds. These men were not acting as lawyers, but as general fundraising advisors, listening to him posit scenario after scenario about how he could raise campaign cash and what he could get in return for the Senate seat.
Blagojevich wasn't asking them, for example, if it would be acceptable if he tried to shake down the CEO of a hospital a few days after approving a grant for that hospital. He merely instructed his brother, co-defendant Robert Blagojevich, to make the call and when the CEO refused to play, the governor uttered one of his many expletives and made a call to hold up the grant.
"I'd be very surprised if any lawyer told Gov. Blagojevich that, because the Senate seat was f****** golden, it would be lawful not to give it away for nothing," said Al Alschuler, a professor of criminal law at Northwestern University. "I doubt that any lawyer told the governor that it would be lawful to conspire to withhold other government benefits unless the beneficiaries made campaign contributions. And if any lawyer ever did, it wouldn't have been reasonable to rely on his advice."
To argue the advice of counsel defense is to say that your lawyers steered you completely wrong and therefore, you could not possibly have formed the criminal intent state of mind that is required for a conviction.
To frame an advice-of-counsel defense, a person must show that
(1) before taking action, (2) he in good faith sought the advice of an attorney whom he considered competent, (3) for the purpose of securing advice on the lawfulness of his possible future conduct, (4) and made a full and accurate report to his attorney of all material facts of which the defendant knew, (5) and acted strictly in accordance with the advice of his attorney, who had been given a full report. A crucial element in this defense is that defendant secured the advice on the lawfulness of his possible future conduct.
These are the ground rules set out by the 7th U.S. Circuit Court of Appeals in a 1993 case. Some courts also require a showing that the defendant was "reasonable" in relying on his lawyer's advice and that the lawyer provided assurances that the advice was sound.
There was just one piece of prosecution evidence that showed Blagojevich had sought legal advice. In mulling the possibility of appointing himself to the Senate seat vacated by then President-elect Barack Obama, he asked his general counsel, Bill Quinlan, to research whether his wife could act as a lobbyist in Washington while he was a sitting Senator. The answer was yes, provided she did not lobby Blagojevich directly.
Nothing in the federal wiretaps show that Blagojevich was using his aides and fundraisers to seek legal advice.
In fact he explodes when one of his political consultants, Bill Knapp, suggests that he appoint Valerie Jarrett, initially Obama's choice for the job, simply to make Obama happy. "I mean you guys are telling me I just gotta suck it up for two years and do nothing. Give this mother f***** his senator. F*** him. For nothing? F*** him." His lawyer, Quinlan, was in on the conference call that elicited this wrath, but one would hardly call that exchange a request for legal advice.
In fact, subsequent to that phone call, he directed his aides to get Obama's billionaire friends like Warren Buffet and Bill Gates to set up a $15 to $20 million nonprofit organization for him. He asked another aide to inquire about whether he could head up a union organization. And of others, he asked about getting his wife jobs on corporate boards, being named the head of the U.S. Department of Health and Human Services, getting an ambassadorship.
Legal advice? Hardly.
He was heard on tape asking aides to solicit $100,000 from horse racetrack owner John Johnston while a bill favorable to the industry sat unsigned; get Rahm Emanuel's brother to hold a fundraiser for him while a promised grant to a school in Emanuel's Congressional district was held back for a time; get $100,000 from a prominent member of the road construction industry in exchange for an expanded Tollway funding package.
And he told his brother to call a prominent Indian-American businessman who had promised millions in campaign cash if Blagojevich would appoint Jesse Jackson, Jr., to the Senate, and say that "if there's tangible political support like you've said, start showing us now." Blagojevich went on to tell his brother to be very careful; to conduct the meeting in person and "assume the whole world is listening."
Now that sound like legal advice, or, rather illegal advice. It's as if Blagojevich is saying "It is wrong to link campaign contributions to government action, but I want you to do it anyway; just make sure no one hears ya."
The advice of counsel theory is just another defense delusion.