The Blagoyevich Case-Is There a Conspiracy?

Today, Governor Rod Blagoyevich's attorney, Ed Genson, dismissed the taped telephone conversations against his client as mere jibber-jabber since no deal had been made and no money changed hands. Others (like Alan Colmes) are beginning to question whether the Government really has a case on Blagoyevich for the same reason. Eventually, the tapes will tell the tale-what Blagoyevich and others said will be crucial. US Attorney Patrick Fitzgerald has already told us some of the things the Governor said. We are still waiting to learn what Rahm Emanuel and others may have said or did not say on tape. The question is: can you prosecute Blagoyevich if no money changed hands and no Senate appointment was made?

First of all, anyone who thinks that there is no conspiracy here is delusional. This is more than just one crazy governor looking for a Senate buyer. Remember, this is Illinois-more specifically, Chicago that we are talking about here. There is a conspiracy, but a lot of people don't understand what the conspiracy law is. Different states have their own version of it, and the Federal Government has conspiracy statutes as well.

The Federal Conspiracy statute, explained in simple terms is as follows:

Two or more people (not including a Government agent)enter into an agreement to violate the law or achieve some legitimate end via illegal means. The agreement must be a sound agreement, with the co-conspirators knowing the illegal nature of their acts. In addition, the objective of the conspiracy must be realistically obtainable. For example, a conspiracy to smuggle Limburger cheese from the Moon without paying Customs taxes would not be a real conspiracy.

Once the agreement is reached, one or more of the conspirators must commit an overt act in furtherance of the conspiracy. The overt act does not have to be an illegal act in itself. For example, under the federal drug conspiracy statute (21 USC 846), which we used regularly in DEA, if two or more people agreed to travel to Mexico to smuggle heroin back into the US, and one person purchased airline tickets to Mexico, that would be an overt act. Other overt acts could be telephone calls, e-mails, hotel reservations, meetings etc.-anything in furtherance of the conspiracy. It is also not necessary for each co-conspirator to know all the others. In a large criminal organization, that is usually not possible.

You might ask, "how do you prove the existence of the actual agreement between the co-conspirators? Obviously, they don't draw up contracts." True enough, but the agreement can often be inferred from the overall evidence. It is also often supplied by the testimony of a cooperating witness/defendant, or unindicted co-conspirator who was involved in the conspiracy at some point.

The bottom line is that a conspiracy actually involves an attempt to commit a crime. Why have the law in the first place? Because-especially in drug cases-it enables the law to prosecute those at the top who direct other but never commit the actual criminal acts-or touch the drugs themselves. It also means that drug traffickers can be prosecuted even if no drug seizure has ever been made. We prove through the conspiracy and the evidence/testimony that drug transactions were, in fact, carried out.

In the case of Blagoyevich, there are obviously a lot of spaces to be filled in-at least for us in the public. If the tapes show others to be planning to buy the Senate seat, then all that is needed for a conspiracy to occur would be at least one overt act. For example, if-and I repeat if- the purpose of those two meetings at an Indian restaurant in Schaumberg were to buy a Senate seat for Jesse Jackson Jr, then those meetings would constitute overt acts, and the crime of conspiracy would be complete. If participants to those meetings went out and solicited funds to pass on to Blagoyevich, those are overt acts as well.

So the fact that Blagoyevich was arrested before he could actually sell the seat to whomever and collect his cash does not mean that a crime was not committed. Who the actual co-conspirators are remains to be divulged. Common sense tells me that there are others out there besides his aide John Harris (also indicted).

Furthermore, if the Government makes a deal with Blagoyevich, there is no telling how big this conspiracy could turn out to be.