Talk is cheap, but it still can be a crime

Confronted with taped conversations of the governor allegedly scheming to sell off a U.S. Senate seat and state business, Gov. Rod Blagojevich's defense attorney shrugs off the federal charges as "just people jabbering."

Ed Genson says the recordings amount to "two months of someone who obviously likes to talk a lot, but two months of nothing getting done" because none of the alleged schemes were fully carried out.

But U.S. Attorney Patrick Fitzgerald outlined after the governor's arrest how talking can be a crime. "It is a crime in and of itself for people to scheme to violate the law, that is called conspiracy," he said. "If you lean on someone and lead them to believe their bill is not getting signed unless they give you the money, that is acting like a tough guy. It is a crime."

Fitzgerald is right, legal experts say, but that's not to say Genson is wrong.

The difference, they say, is the nature of the talk. Was Blagojevich just blowing off steam or boasting of what he could do or wanted to do? That, they say, may not be enough to demonstrate the legal requirement of "intent," or that Blagojevich truly intended to agree with someone else that they would do the crime.

The exact charges fall under two separate counts. The first alleges that the governor and his chief of staff John Harris "did conspire ... in a scheme to defraud the state ... of the honest services of ... Blagojevich." The defrauding, prosecutors say, was intimating to donors that state services or state funding wouldn't be delivered unless campaign donations were made, and that the appointment to a U.S. Senate seat would only be made to someone who gave the governor campaign donations or an appointment to a federal government job.

The second charge alleges the two "solicited and demanded a thing of value," the firing of Chicago Tribune editorial board members in exchange for financing a Cubs sale. Essentially, it says, the governor demanded a bribe in exchange for state funding.

The line between just talking and conspiracy, "that's where it gets real gray," said Terry Sullivan, a former Cook County prosecutor and now an attorney in private practice.

"Did you take that little extra step beyond boasting?" is the key question, Sullivan noted.

Len Cavise, a law professor at DePaul University, said there is a line between talking about a crime and committing one. A crime generally occurs, he says, when someone acts on the talk and that includes directing someone else to carry the crime out.

"It is like a mob boss who says, 'Geez, I really like that guy dead.' That is not a crime," Cavise says. "But if he says, 'Go kill that guy,' that is a crime."

Patrick Collins, the former federal prosecutor who put ex-Gov. George Ryan away, agrees with Fitzgerald - that for conspiracy, or schemes to defraud, you just have to agree with someone you will commit a crime for there to be a crime; you don't actually have to ever have to take an "overt act" toward committing it. But just because it's a crime doesn't mean you'll get a conviction, Collins noted.

"An agreement that's not brought to fruition is still a crime, but it doesn't have enough jury appeal," Collins said.

"If Blagojevich said, 'go do this,' it's enough. But it's kind of a lousy case if Harris blows it off," Collins noted.

"You want steps taken in furtherance of the agreement, or the jury's not going to believe there was an agreement," Collins said.

What Collins suspects prosecutors are busy doing is going around to the Senate candidates and company executives that Blagojevich is on tape talking about, and seeing if, on their end, anyone from the governor's office ever showed up or called demanding anything.

But, notes Collins, all the academic discussion about the two charges may miss the point. Those are charges that the government itself made. What's still required, and yet to come, is an indictment. That's where a grand jury, a panel of ordinary citizens, makes the accusation. Fitzgerald noted the charges made were put together in haste to head off "a political crime spree." The indictment will come at a more leisurely pace.

Collins speculated that will be a very different document, with much more concrete crimes alleged that require actual "overt acts."

"My suspicious is ... it's going to be a (George) Ryan-esque ... racketeering scheme" that's alleged, Collins said.