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Examining Potential Legal Strategy For Blagojevich

STEVE INSKEEP, host:

The evidence against Governor Blagojevich includes tapes in which he says the vacant Senate seat is golden and that he won't give it up for nothing. Still, he's considered innocent until proven guilty. So we've been asking how he might defend himself against such charges. We called a prominent defense lawyer whose previous clients include Chicago Congressman Dan Rostenkowski, who went to prison. The lawyer's name is Stanley Brand.

Mr. STANLEY BRAND (Defense Lawyer, Brand Law Group): Anytime you have tapes, you have a very appealing salacious piece of evidence to present to a jury. The question is what actually happened, whether the scheme came to fruition or not. From what I heard, it didn't. No one was bribed. No job was obtained. Nothing concrete actually was achieved.

INSKEEP: Well, let's say that you're a defense lawyer. Let's say that Governor Blagojevich called you up and said, well, Mr. Brand, you've got some experience in this area. Where do we start with this? I've got a little problem here. What would you tell him?

Mr. BRAND: Yeah, I guess my theory of defense from, you know, 30,000 feet, as they say, would be to put this all in context in front of a jury and say, you know, this all sounds very scurrilous and untoward. However, nothing ever happened. No one got any money. No one got a job. And it's distasteful, but it didn't rise to a crime.

INSKEEP: You can say that because prosecutors interrupted it. But can't prosecutors say there was clearly a conspiracy here, and the only reason no one got a job is because we stopped it?

Mr. BRAND: Sure, that's the government's side of the case that the conspiracy doesn't have to be completed and have its end achieved for it to be a conspiracy that's illegal under federal law. So that's where you have the horse race.

INSKEEP: I will say that just as a layman watching Prosecutor Fitzgerald lay out his case earlier this week in a press conference with great moral outrage, I did wonder, again as a layman, is this illegal if it happens? Isn't it pretty normal that politicians trade favors like this?

Mr. BRAND: I think the trading of favors and asking of accommodation is part and parcel of the political process. What's different is when money intrudes. And so the question is was he really trading official acts for something of value, namely money or a job? That changes the character of it.

INSKEEP: Could he make an argument that he was just talking?

Mr. BRAND: Yeah, you know, they made that defense in the Abscam cases. You know, they were just blowing off steam. That's tough in front of the jury when there are tapes and there are steps that have been taken that appear to what we call, you know, overt acts in furtherance of the conspiracy that actually came about.

INSKEEP: You're going to need to remind people what the Abscam case was.

Mr. BRAND: Abscam was an undercover operation run by the FBI with FBI agents posing as sheiks and offering bribes, basically, to members of Congress in return for legislative action.

INSKEEP: And so that defense, I was just talking, I was just blowing off steam, was made there. And of course you still ended up with people going to prison.

Mr. BRAND: People - everybody convicted.

INSKEEP: And I'm thinking of the famous tapes of Richard Nixon in the White House where, of course, you did have a lot of illegal acts that were committed. But you also had the president saying the most astounding, alarming things. And it doesn't appear that his staff necessarily acted on all of them.

Mr. BRAND: No, but they were all convicted. Halderman, Ehrlichman, you know, Dean. All the people in the inner circle were convicted of conspiracy and obstruction of justice on very similar grounds.

INSKEEP: So it's not likely, it sounds like - maybe there's a chance, but not a great chance that the governor could say in his defense, hey, I'm just kind of twisted in private, and my staff knows this, and I say all kinds of things, and they don't necessarily act on them.

Mr. BRAND: Yeah. But, you know, it's a tough defense, I think.

INSKEEP: Well, if he was asking you for advice now, would you say, Governor, plead out, you've got no chance here?

Mr. BRAND: No, I wouldn't because I think there are some issues about the wiretaps. There are always issues about how the government conducted the investigation, whether some of this evidence actually will get into evidence, and you're better off fighting to get some leverage.

INSKEEP: So that's the first thing you'd do as a defense lawyer is fight over the evidence before the trial even begins.

Mr. BRAND: Yes.

INSKEEP: And then find out if you've got a situation where you might be able to strike a deal for your client.

Mr. BRAND: Yes, assuming you don't learn things in the course of that process that are more helpful, in which case maybe you take a roll of the dice and go to trial.

INSKEEP: Some legal advice from Stanley Brand, a criminal defense lawyer in Washington, D.C. We should mention that the bloggersphere has already reached a judgment of sorts in this case. More that a dozen people have now put the Illinois Senate seat up for sale themselves. They're holding mock auctions on eBay. One ad reads, "Used Illinois Senate seat. All wood and leather. Willing to deal on this one. Please be advised that I will be away from my office for a while." Yesterday the fake bidding had reached over 99 million dollars. Transcript provided by NPR, Copyright NPR.

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