CHICAGO As Rod Blagojevichs attorneys prepare to make their last pitch to jurors, their closing arguments may come down to this: The former Illinois governor wasnt capable of doing anything but talk. And talk.
In the words of Blagojevich himself, he may have proposed some stupid ideas that were secretly recorded by the FBI, but nowhere is there any evidence he took a single corrupt penny.
That leaves prosecutors with the challenge of persuading the jury that, as ineffective as he might have seemed, Blagojevich wasnt just talking. He was conspiring. And conspiracy is a crime.
None other than U.S. District Judge James B. Zagel alluded to the question Thursday when he tried to summarize the arguments that jurors likely will hear from both sides Monday.
The tapes really have a lot of talk that seems like blowing off steam ... as opposed to doing, the judge said at a hearing where he refused to dismiss the charges.
But if Zagel suggested that Blagojevich was desperate and perhaps delusional, the judge also made it clear that the defendants lack of success in obtaining money or a new job may not matter.
Conspiracy is a crime that involves people talking to each other, he said. You can have a conspiracy entered into by fools and bumblers ... and its still a conspiracy.
Blagojevich attorney Lauren Kaeseberg insisted that the prosecutions case was built on talk.
That means if Ive researched a crime, Ive attempted to commit that crime? If Ive talked about a crime Ive attempted to commit that crime? Kaeseberg said.
But the prosecution can wage a counterargument: That even if Blagojevichs comments sounded like jokes wondering what life would be like if he became ambassador to India, or suggesting that Barack Obama might ask him to join the White House Cabinet that talk did trigger action.
Prosecutors said Patti Blagojevich did research the salary of a private foundation as she spoke to her husband on the phone. And one of Blagojevichs top aides did research ambassadorships.
Blagojevichs attorneys have sought to exploit some of the more embarrassing revelations of the trial that their client was so lazy he showed up to his office as little as two hours a week and sloughed off so much of his work that a top aide actually signed bills into law.
How, they might ask jurors, could the same man who hid in the bathroom to avoid discussing the state budget be capable of shaking down the president in exchange for appointing Obamas choice to his old seat in the U.S Senate?
And why didnt Blagojevich follow up on threats to punish companies that didnt find his wife a job by cutting them off from state business? Why didnt he make good on threats to kill a Wrigley Field deal sought by The Chicago Tribunes parent company if the paper didnt fire writers who had blasted him on the editorial page?
They could get some mileage out of that, said Joel Levin, a Chicago attorney and former federal prosecutor. Given his behavior in the past few months, they could say hes something of an airhead and a flake who runs off at the mouth, (that) its meaningless babble.
But, he said, the defense team will have trouble if they try to convince jurors that Blagojevich wasnt serious.
When you listen to his voice on those tapes ... its all about money for himself, this is what he wanted and he wasnt joking, Levin said. If you listen to his intonation, there is no indication of a joke.