Illinois Governor Rod Blagojevich. (Illustration: Paul Giambarba / t r u t h o u t)
The ghost of Christmas present arrived a bit early for Rod Blagojevich - at about 6:00 a.m. on December 9 to be exact - in the form of an FBI agent bearing handcuffs and an arrest warrant. It was not a joke, the agent assured the Illinois governor, which should come as no surprise to anyone familiar with the FBI. (When it comes to arrests, at least, Tommy Lee Jones's Special Agent K had it exactly right in Men in Black: "We at the FBI have no sense of humor we're aware of.")
Unfortunately, for the Blagojevich family, the pending complaint against the governor is not their biggest problem. It is the ghost of Christmas future which should keep them up nights since Rod Blagojevich is most assuredly looking at additional, and even more serious, charges. Indeed, the indictment-to-be against the Illinois governor and a host of others about whom I will refrain from speculating is beginning to look a lot like RICO, a prosecution under the Racketeering Influenced and Corrupt Organizations Act.
But first, what exactly is the procedural status of the case against the Illinois governor? Despite stories you may have read or heard just about everywhere - on National Public Radio, TV news, in blogs and in many newspapers - Blagojevich has not yet actually been indicted on the much-discussed federal violations of soliciting a bribe and conspiring to commit mail and wire fraud. He has been charged by complaint. This is not merely a technical difference.
Under the U.S. Constitution, a person can not be tried for any felony - that is an offense punishable by more than a year in jail - unless he has first been indicted by a grand jury for the particular crime. Sometimes, though, a person has to be taken into custody quickly. In such instances, whether the crime spree involves bank robberies or public corruption, the Federal Rules of Criminal Procedure (Rule 4 for those of you who like chapter and verse) allow a prosecutor to write up the charges in a form called a "complaint" and submit them, along with a statement of probable cause sworn and signed by an agent, to the court for review. If the allegations are sufficiently specific and corroborated, the court will issue an arrest warrant based on that complaint.
Here's the catch, though: a federal criminal attorney can not just merrily drag a defendant into court for trial on the charges in a complaint. Because of that pesky Constitution I mentioned above, a federal prosecutor who wants to proceed on felony charges must, sooner or later, present the case to a grand jury for indictment. So, unless the feisty Illinois governor suddenly becomes chastened and decides to plead guilty, there is no doubt that U.S. Attorney Patrick Fitzgerald and the investigative team working on the case will be presenting an indictment. I can't say precisely when this will happen, because defendants often agree to extend the various applicable time limits. But I do know that it will, in fact, occur.
And what would this federal indictment of the current Illinois governor look like? Well, I have no inside information whatsoever, but all indications are that it would be remarkably similar to the federal indictment of Illinois's previous governor. The facts may be different, and certainly the current governor appears to have outdone his predecessor George Ryan in both the creativity and overall criminal freneticism categories, but the basic legal framework would still apply. Consequently, it is highly likely that an indictment of Blagojevich would be framed around a RICO charge, or to put it in legal terms, a violation of Title 18, United States Code, Section 1962(c): that is, conducting an enterprise that affects interstate commerce through a pattern of racketeering activity.
Astonishingly, for the second time in this decade, the illegal enterprise charged against the governor of Illinois would be the very state he was elected to serve. And based on the allegations filed by FBI Special Agent Daniel Cain in support of the Blagojevich complaint, it appears that the six year pattern of racketeering acts could include:
Multiple mail and wire fraud counts in violation of Title 18, United States Code, Sections 1341, 1343 and 1349
Multiple acts of bribery in violation of Illinois state law
Attempted bribery in violation of Title 29, United States Code, Section 186 (a labor racketeering law)
Money laundering in violation of Title 18, United States Code, Section 1956
Extortion in violation of Title 18, United States Code, Section 1951
Bribery in violation of federal law, Title 18, United States Code, Section 666
In addition to forming the subparts of a RICO violation, each of the federal charges would likely be separate offenses. Equally likely is that Blagojevich et. al. would be indicted for tax evasion. (I have never yet encountered a single defendant who declared income from bribery or extortion as the I.R.S. Code so optimistically requires taxpayers to do.) Then, to add insult to injury, the governor and his co-defendants would be charged with asset forfeiture counts, so they stand to lose any property they have obtained directly or indirectly through illegal activity.
In short, Rod Blagojevich's nightmare before Christmas is only just beginning. He is presumed innocent, of course, but if he is convicted of even a fraction of the probable charges against him, the man who - according to FBI Agent Cain's affidavit - repeatedly complained of feeling "stuck" in the Illinois Governor's office could well be stuck in a far more confining space for a very long time.