High court ruling on ‘honest services’ may help Black, but not looming large in Blago trial

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Fraud ruling? Experts say minimal impact on Blago

CHICAGO — A U.S. Supreme Court decision this week gave fresh hope to disgraced Enron CEO Jeff Skilling and jailed former media mogul Conrad Black — but may not significantly affect the corruption trial of former Illinois Gov. Rod Blagojevich, legal experts say.

Attorneys say that federal prosecutors prepared by adjusting the indictment against Blagojevich in case the Supreme Court did wipe the law off the books. And they say if the jury thinks Blagojevich is guilty there are plenty of charges to convict him of.

“The government’s case can probably proceed, but the decision narrows and clarifies what they are going to have to prove to get a conviction,” law professor Daniel P. Tokaji of Ohio State University said after studying the decision handed down Thursday.

The ruling focuses on an anti-fraud law often used in major corruption cases that says politicians and corporate executives can’t deny taxpayers or shareholders their “intangible right to honest services.”

Critics have said the law gave prosecutors the freedom to turn almost anything into a crime. Supreme Court Justice Antonin Scalia once said a prosecutor could use the law to charge a mayor for using political clout to get a good table at a restaurant.

The high court’s ruling in the cases of Skilling and Black said that to stand up in court, a charge under the law must include allegations of bribery or kickbacks and not merely stand-alone claims that the defendant deprived someone of honest services. Lower courts will decide if Skilling and Black should be resentenced.

But U.S. District Judge James B. Zagel, presiding in the Blagojevich trial, immediately told the former governor’s attorneys that the ruling “may not offer a lot of hope for you.”

Ron Safer, the former head of the criminal division of the U.S. attorney’s office who is now managing partner at the Schiff Hardin law firm in Chicago, said he does not believe any charges will be dropped.

“First, the government restructured the indictment in anticipation of the Supreme Court’s opinion,” Safer said. “Second, the Blagojevich case is all about kickbacks and bribes which remain honest services frauds” under the ruling.

Dean Polales, a former federal prosecutor now in private practice, said he thinks prosecutors are presenting the case “so they could go to the jury with the same evidence regardless of what the charges were.”

James Barz, a former assistant U.S. attorney, believes “the defense is clearly going to file a motion to dismiss all the honest services charges” in the indictment. They asked for a delay Thursday to study the ruling, which Zagel denied.

Blagojevich attorneys Sam Adam Jr. and Sheldon Sorosky did not immediately respond to messages at their law offices on Friday. A spokesman for the U.S. attorney’s office in Chicago, Randall Samborn, had earlier declined to comment.

Blagojevich, 53, has pleaded not guilty to scheming to get a high-paying job or possibly a Cabinet position or massive campaign contribution in return for an appointment to the U.S. Senate seat President Barack Obama gave up to move to the White House. He also has pleaded not guilty to scheming to launching a racketeering operation using the powers of the governor’s office.

His brother Robert Blagojevich, 54, has pleaded not guilty to being part of the alleged scheme to sell or trade the Senate seat and illegally pressuring a donor for a campaign contribution.

As soon as the honest services debate reached the Supreme Court, U.S. Attorney Patrick J. Fitzgerald got a new indictment that relies less on honest services charges.

“It’s designed so that if the honest services counts were jeopardized they could still go on with the trial, presenting the same evidence,” Barz said.

The first 13 counts, racketeering, racketeering conspiracy and 10 counts of wire fraud, are all based in whole or in part on the honest services law. But counts 14 through 24 — four counts of attempted extortion, two counts of extortion conspiracy, two counts of attempted extortion, two counts of bribery and one count of lying to FBI agents — have nothing to do with the honest services concept.

“He’s got a lot of counts against him that allege substantive crimes,” says professor Leonard Cavise of the DePaul University law school.