McHenry County Blog

John Harris, former Governor Rod Blagojevich’s chief of staff, has plead guilty to “participating in a scheme to commit wire fraud, including through the deprivation of honest services.”

Harris admits that

“from approximately October 2008 to on or about December 9, 2008…together with co-defendant Rod Blagojevich and others, participated in a scheme to deprive the people of the State of Illinois of their intangible right to the honest services of Defendant and Rod Blagojevich.”

“It was part of the scheme,” the plea agreement continues, “that beginning in or about October 2008, and continuing until on or about December 9, 2008, Rod Blagojevich, with the assistance of Defendant and others, sought to obtain financial benefits for Blagojevich and his wife, in return for the exercise of his duty under Illinois law to appoint a United States Senator to fill the vacancy created by the election of Barack Obama as President of the United States.

“At times Defendant assisted Blagojevich’s efforts to carry out the scheme by suggesting means by which Blagojevich could secure personal benefits for himself in exchange for appointing a United States Senator, conducting factual research relating to the scheme at Blagojevich’s direction, and counseling Blagojevich on carrying out the scheme.

“At other times, Defendant expressed opposition to Blagojevich’s efforts to enrich himself through his appointment of a United States Senator, and/or did not follow instructions from Blagojevich to assist in those efforts.

“Specifically, starting in December 2005 and continuing until December 2008, Defendant served as then Illinois Governor Rod Blagojevich’s Chief of Staff.

“Over the course of many months in 2008, Defendant participated in and was aware of discussions involving Blagojevich and others about the possibility that Blagojevich might have the ability to appoint someone to replace then-U.S. Senator Barack Obama if he won the general election for the President of the United States.

“By early October 2008, Defendant participated in regular conversations with Blagojevich about what personal benefits Blagojevich could obtain in exchange for naming someone to the U.S. Senate seat should Obama win the Presidency.

“As one example, around October 6, Blagojevich asked Defendant what Blagojevich could get in exchange for the U.S. Senate seat.

“Defendant told Blagojevich that the appointment could either reward an ally or make a new ally but that Blagojevich could not trade the Senate seat for something for himself.

“In other discussions with Blagojevich, Defendant and others told Blagojevich that he could not receive money (either campaign money or other money) in exchange for naming someone to the Senate seat. Blagojevich ignored Defendant’s statements.

“Shortly before and immediately after the November 4, 2008 election of Barack Obama as President of the United States, Blagojevich’s discussions with Defendant about Blagojevich’s appointment of a replacement Senator became more frequent and more detailed.

“Defendant participated in numerous discussions with Blagojevich and others about this issue.

“Defendant was aware that Blagojevich was also talking to a small group of internal and external advisors about this issue.

“Throughout the course of these discussions, Blagojevich made it clear to Defendant that Blagojevich was not focused on what was in the best interest of the people of the state of Illinois but instead was focused in large part on what Blagojevich could get personally in exchange for the Senate appointment.

“Around the time of the November 4 election, Defendant learned that Senate Candidate B was interested in the Senate seat. Blagojevich discussed with Defendant that he wanted to use Senate Candidate B’s interest in the Senate seat as a way to get something for himself from President-elect Obama.

“Initially, Blagojevich wanted to be appointed Secretary of Health and Human Services.

“On or about November 6, 2008, Blagojevich met with Service Employees International Union (SEIU) Official A, who had been presented to Blagojevich and Defendant as an emissary working on behalf of President-elect Obama with respect to filling the Senate seat. Prior to the meeting, Defendant helped Blagojevich strategize regarding how to ask SEIU Official A for the HHS position in exchange for making Senate Candidate B the Senator.

“After the meeting, Blagojevich told Defendant and others that during the meeting, he asked SEIU Official A for the HHS position in exchange for making Senate Candidate B the Senator.

“During discussions with Defendant, Blagojevich expressed interest in an ambassadorship from President-elect Obama in exchange for making Senate Candidate B the Senator.

“On or about November 5, 2008, Blagojevich directed Defendant and Deputy Governor A to research ambassadorship options for him. Blagojevich also directed Defendant and Deputy Governor A to research private foundations where he might be able to get a high-paying position in exchange for making Senate Candidate B the Senator.

“Defendant told Blagojevich that the private foundation option would give President-elect Obama a buffer, meaning that it would not be obvious that Blagojevich was getting a position in exchange for making Senate Candidate B the Senator.

“Defendant suggested that the foundation would need to be a group that was dependent on federal funding, so that President-elect Obama would have enough influence to get Blagojevich a position. Blagojevich was very interested in this idea and told Defendant to look into options right away.

“Deputy Governor A asked whether Blagojevich was thinking about a position with a private foundation for 2010 (when his term as Governor ended) or now.

“Blagojevich said that he wanted the position now and wanted to know how much the position paid. Deputy Governor A responded that the salary was likely $200,000 to $300,000.

“Blagojevich seemed disappointed in that salary and asked something like, ‘Oh is that all?’

“At that point, Defendant said that he thought the salary was more like $300,000 to $500,000.

“Blagojevich had a more positive reaction to that salary.

“Blagojevich suggested that SEIU and other labor unions provided funds to some private foundations and suggested those foundations be the ones Defendant and Deputy Governor A research. Defendant understood that Blagojevich’s personal financial circumstances and security were a significant consideration for Blagojevich in his analysis of whom he should name to the Senate seat.

“Blagojevich told Defendant that if he could not get a position directly through President-elect Obama in exchange for picking a desired candidate, then Blagojevich would seek a position through supporters of President-elect Obama in exchange for naming someone to the Senate seat. Blagojevich asked Defendant to develop a union-based option for him.

“The next day Defendant responded to his assignment by presenting Blagojevich with an idea by which Blagojevich could become the national coordinator for an organization named ‘Change to Win.’

“Change to Win is an organization associated with a number of labor unions, including SEIU. Defendant suggested to Blagojevich that SEIU Officials A and B, whom Defendant and Blagojevich believed were already acting as emissaries between Blagojevich and President-elect Obama for purposes of picking a desired Senate candidate, could get Blagojevich the Change to Win position in exchange for Blagojevich agreeing to make Senate Candidate B the Senator.

“Defendant explained to Blagojevich that the benefit to SEIU would be that SEIU would have helped President-elect Obama by getting Blagojevich to appoint Senate Candidate B to the Senate and in exchange, President-elect Obama would look favorably on SEIU’s agenda in President-elect Obama’s administration.

“The benefit to Blagojevich would be a paid position as National Coordinator with Change to Win. Defendant further explained that the benefits to President-elect Obama would be that Blagojevich would appoint Senate Candidate B to the U.S. Senate seat, and SEIU Officials A and B would act as a buffer between President-elect Obama and Blagojevich.

“Defendant explained to Blagojevich that the Change to Win position would keep him politically viable, pay him a salary, and provide him with union support and connections for whatever he wanted to do down-the-road. Blagojevich said that he thought it was a great idea, but was concerned that he would have to make the Senate appointment first, which meant that SEIU could withhold the Change to Win position later.

“Defendant explained to Blagojevich that part of the advantage to the Change to Win idea was that this was something that SEIU Officials A and B could promise to Blagojevich now and Blagojevich could believe that they would follow through on later, while part of the disadvantage to the Change to Win idea was that it was not politically acceptable for Blagojevich to step down as Governor to take that position.

“In response, Blagojevich suggested the possibility of having his wife take a position now and then Blagojevich could take the national position later.

“Defendant told him that this was not a good idea. Blagojevich asked Defendant what the Change to Win position paid and asked whether he could get extra income if he sat on other boards. Defendant speculated that the position would pay no more than SEIU Official A’s salary.

“On November 7, 2008, Defendant participated in a conference call with Blagojevich and Advisor A, in which Blagojevich solicited Advisor A’s thoughts on the Change to Win idea.

“Defendant knew that Advisor A was an outside consultant whom Blagojevich trusted and upon whom Blagojevich relied for political advice. During the call, Blagojevich told Advisor A what had happened at the November 6 meeting with SEIU Official A.

“Blagojevich then directed Defendant to tell Advisor A about the Change to Win idea. Defendant explained the idea and Advisor A responded in a very positive way.

“Advisor A analogized the Change to Win deal to a three-way trade in baseball because it allowed President-elect Obama to stay out of Illinois politics because he would have a buffer and there would be no obvious quid pro quo for Senate Candidate B. Blagojevich told Advisor A that he was looking for $250,000-$300,000 in salary and also to sit on some boards.

“During the call, Defendant understood that Blagojevich was focused on obtaining money and maintaining his political viability in his analysis of whom to name to the Senate seat.

“After this call, defendant and Blagojevich learned that SEIU Official A’s salary was approximately $125,000 to $150,000 annually. Upon learning this, Blagojevich was disappointed and wanted to know if he could be paid more than SEIU Official A.

“On or about November 12, 2008, the media reported that Senate Candidate B was going to work at the White House. Defendant participated in a number of conversations with Blagojevich about this development.

“Defendant believed that Senate Candidate B’s decision to go to the White House caused Blagojevich to become anxious about losing leverage for what he might be able to ask of President-elect Obama with respect to a position for himself.

“At this point, Blagojevich began to express greater interest in the possibility that supporters of President-elect Obama would establish and fund a 501(c)(4) organization for the benefit of Blagojevich in exchange for a Senate seat appointment.

“Blagojevich asked Defendant to reach out to United States Congressman A about this possibility.

“Defendant believed that this was a direct quid pro quo and Defendant did not make any calls to further Blagojevich’s request.

“Defendant concealed from Blagojevich that he did not follow Blagojevich’s directive to contact United States Congressman A about the 501(c)(4).

“Blagojevich later told Defendant that he had approached SEIU Official A about the 501(c)(4) idea and Blagojevich said that SEIU Official A was going to ‘run it up the flag pole,’ which Defendant took to mean that he was going to check with representatives of President-elect Obama.

“At this time, Blagojevich also pressed Defendant to have an ‘off campus’ discussion with Senate Candidate D. Defendant knew that this was a reference to Blagojevich’s prior directive to Defendant to ask Senate Candidate D for Senate Candidate D’s remaining campaign funds in exchange for appointing Senate Candidate D to the U.S. Senate Seat.

“Sometime in the summer of 2008, Blagojevich told Defendant that if he appointed Senate Candidate D to the vacant Senate seat, he would want and expect Senate Candidate D to give Blagojevich some or all of Senate Candidate D’s campaign funds.

“Blagojevich raised this topic, which was often referred to as ‘he off-campus discussion’ with Senate Candidate D, in several phone calls with Defendant.

“Defendant believed that Blagojevich was again raising this issue because Blagojevich believed that a deal with representatives of President-elect Obama involving Senate Candidate B was no longer a possibility.

“In response to Blagojevich’s directives to him, on November 12, 2008, Defendant met with Senate Candidate D in his Springfield office.

“During the meeting, Defendant had a discussion with Senate Candidate D about his plans for his campaign funds that could not be converted to personal use.

“Defendant did not directly tell Senate Candidate D that Blagojevich was going to ask Senate Candidate D for his campaign funds.

“Based on what Defendant did say, however, Defendant believed that Senate Candidate D was on notice that, in relation to the Senate seat, Blagojevich was going to talk with Senate Candidate D about Senate Candidate D’s campaign funds.

“On or about December 4, 2008, Blagojevich told Defendant that Senate Candidate A, through a third-party, had offered to raise $1.5 million in campaign funds for Blagojevich in exchange for the U.S. Senate appointment.

“Defendant told Blagojevich that the offer to raise funds should not be a factor in his decision, although it was clear to Defendant that a large part of Blagojevich’s consideration for appointing Senate Candidate A to the Senate was the offer of campaign funds.

“Defendant had previously advanced an argument in favor of Senate Candidate A, listing all of the favorable points of a Senate Candidate A appointment, in response to which Blagojevich had dismissed all of the points Defendant made and had refused to even entertain the idea of appointing Senate Candidate A.

“Although Blagojevich was previously not willing to consider Senate Candidate A, Defendant believed that Blagojevich was now seriously considering Senate Candidate A because of the offer of campaign funds.

“In addition, Defendant was aware that, from time to time, in the course of considering options to fill the open Senate seat, Blagojevich considered appointing certain other individuals or appointing himself to the open Senate seat, often with personal benefits to himself as part of Blagojevich’s consideration.

“For instance, with respect to appointing himself, Blagojevich expressed a variety of reasons for doing so, including to possibly avoid impeachment by the Illinois legislature, to obtain greater resources if he was indicted as a sitting Senator as opposed to a sitting governor, and to facilitate his wife’s employment as a lobbyist.

“In or about the spring of 2008, around the time that Blagojevich’s wife passed her Series 7 examination, which allowed her to sell financial securities, Blagojevich told Defendant that Blagojevich wanted to get Blagojevich’s wife a job using her Series 7 license with an entity that did business with the State of Illinois. Defendant told Blagojevich that his wife could not work for an entity that did business with the State of Illinois.

“Despite this, Blagojevich asked Defendant to set up informational or networking meetings for his wife with financial institutions that had business with the State of Illinois in hopes that those businesses would assist in getting Blagojevich’s wife a job.

“Defendant subsequently arranged a meeting between Blagojevich’s wife and an official at a financial institution that had business with the State of Illinois.

“Defendant also spoke with an official at another financial institution that had business with the State of Illinois concerning that official helping Blagojevich’s wife develop possible employment opportunities.

“When Blagojevich concluded that officials at these institutions had been unhelpful in finding his wife a job, Blagojevich told Defendant that he did not want the institutions to receive further business from the State of Illinois.

“With respect to one of the institutions, Defendant told Blagojevich that, because the entity had business through the state pension funds, Blagojevich did not control those decisions.

“With respect to the other financial institution, despite Blagojevich’s directive, Defendant did not prevent that institution from getting further business with the State and avoided telling Blagojevich when the institution was applying for State business so as to prevent Blagojevich from following through on his directive.

“Further, in November and December 2008, in response to Chicago Tribune editorials that had been critical of Blagojevich, Blagojevich directed Defendant to tell Tribune Financial Advisor that Blagojevich was going to withhold state financial support that would benefit the Tribune Company, unless the Tribune Owner fired people on the editorial board.

“In order to appease Blagojevich, Defendant told Blagojevich that he would and did relay this threat to Tribune Financial Advisor. Although Defendant did have a conversation with Tribune Financial Advisor about the negative editorials regarding Blagojevich, Defendant did not relay the threats as directed by Blagojevich.

“On or about November 7, 2008, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere, Defendant and Blagojevich, for the purpose of executing the above-described scheme, did knowingly cause to be transmitted by means of wire and radio communication in interstate commerce signals and sounds, namely a phone call between Blagojevich and Defendant, in Chicago, Illinois, and Advisor A, in Washington, D.C., in which Blagojevich, Defendant, and Advisor A discussed financial benefits which Blagojevich could request in exchange for the appointment of Senate Candidate B to the United States Senate; in violation of Title 18, United States Code, Sections 1343 and 1346.”

Maximum penalties are 20 years and a $250,000 fine.

The plea bargain, however, states,

“Defendant has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct.”

Harris also “agrees he will fully and truthfully cooperate in any matter in which he is called upon to cooperate by a representative of the United States Attorney’s Office…”

In return for his cooperation, “the government will recommend a sentence of imprisonment that is 50% of the low end of Federal Sentencing Guidelines range applicable to defendant’s offense…”

Carrie Hamilton was Patrick Fitzgerald’s Assistant U.S. Attorney on the case.

Freshman State Senator Dan Duffy, a businessman from Lake Barrington in Lake County, was touted for governor in Chicago Sun-Times columnist Steven Huntley’s column yesterday.

In an piece entitled,

Duffy’s name pops up in the middle of the column, right after the self-dismissals of

• Illinois Supreme Court Justice Bob Thomas,
• Bush HUD Secretary Steve Preston (who?),
• Chicago equity fund chairman Bruce Rauner,
• Congressmen Mark Kirk and
• Peter Roskam, and
• U.S. Attorney Patrick Fitzgerald.

Here’s what Huntley wrote:

“State Sen. Dan Duffy of Barrington, a Legislative newcomer, impresses many in the party. He acknowledges hearing suggestions he run, but no one in the party leadership has approached him.

“The party is now evaluating a lot of people and that’s a good thing,” he says. “If party leaders aid, ‘You’re that person,’ I’d have to have a serious conversation with my family and find out if this is the right time for me. Bit we’re not there yet.”

“A jump from newly minted legislator to governor in just two years would be quite a challenge.”

The column continues with former candidates for governor, State Senator Bill Brady, who ran third in the 2006 gubernatorial primary, Ron Gidwitz (4th) and Jim Oberweis, who ran second.

DuPage County Board Republicans, Chairman Bob Schillerstrom and State’s Attorney Joe Birkett, they of the tripling of the RTA sales tax.

Doug Whitley is also mentioned…more favorably than others actively seeking the office.

The Barack Obama administration seems to be following in the footsteps of the George W. Bush administration.

At least as far as tying up the resources used to prosecute political crime goes in Illinois.

You will remember that Scooter Libby was prosecuted by Chicago’s United States Attorney Patrick Fitzgerald.

Rumor had it that our U.S. Attorney’s office also got terrorist duty under Bush, not to mention the request to evaluate a treaty concerning Antarctica.

If true, neither would seem to have much to do with Chicago.

Now, right out in the open, Obama’s people have told Fitzgerald to prosecute Qatar native Ali al-Marri, according to Associated Press.

The “alleged al-Qaida sleeper agent” will be mored from a Navy brig in South Carolina to Illinois.

I wonder if Obama’s Justice Department is sending lawyers, too.

Senior Federal Judge Milton Shadur sentence former Alderman Ed Vrdolyak to 5 years probation ripping into the U.S. Attorney’s Office for the lack of seriousness of the crime.

There was also a $50,000 fine, which WBBM-Radio reporter John Cody said was one month’s income for Vrdolyak.

The toughest part of the sentence to comply with will probably be the 2,500 hours of community service.

People work about 2,020 hours a year.

Fifty people wrote letters in support of lenient sentencing, WBEZ reports.

The sentence clearly did not meet with approval of United States Attorney Patrick Fitzgerald.

Fitzgerald issued the following statement:

“We strongly but respectfully disagree with the sentence of probation imposed on defendant Vrdolyak. 

“As we argued in court, we believe a sentence of incarceration was appropriate for a defendant who schemed to share a $1.5 million fee with a corrupt insider involving the sale of a non-profit university’s valuable real estate asset.”

Vrdolyak has already given up his law license.

= = = = =
The happy smile on the Chicago Sun-Times the day in August of 2006 when the story about the federal investigation of Edward Vrdolyak broke probably seems more appropriate today than then.

April 7, 2009.

That’s the new Rod Blagojevich indictment deadline being sought by Chicago’s United States Attorney Patrick Fitzgerald.

Too many tapped thousands of telephone calls to analyze.

Too many new witnesses to interview.

Too many potential defendants.

Grand juries on vacation.

But you can look at the sealed attachment, Judge.

And, by the way, attorney’s for Rod Blagojevich and John Harris don’t object.

Here’s the legal filing:

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )
)
v. ) No. 08 CR 1010
)

JOHN HARRIS )

The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, respectfully moves this Court, pursuant to 18 U.S.C. § 3161(h)(8), for a 90-day extension of time, to and including April 7, 2009, in which to seek the return of an indictment against the defendants, for the following reasons:

1. This investigation was initiated in approximately 2003, and involves multiple potential defendants. Two individuals, defendants Rod R. Blagojevich and John Harris, were charged by way of a criminal complaint on December 9, 2008, with:

(a) conspiring to defraud the citizens of Illinois of their right to his honest services, as well as conspiring to obtain money and property by fraud, in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, 1346, and 1349; and

(b) corruptly soliciting and demanding the firing of Chicago Tribune editorial board members who had been critical of Blagojevich, in exchange for the awarding of millions of dollars in financial assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and § 2.

2. Part of this investigation utilized Court-authorized Title III intercepts over multiple phones and in particular locations.

In the most recent set of Title III intercepts, thousands of phone calls were intercepted between late-October 2008 and early-December 2008.

In addition, this investigation has used confidential witnesses.

In addition, multiple witnesses have come forward in recent weeks to discuss their knowledge of criminal activity in relation to the ongoing investigation.

3. A number of factors have led to the government’s request for an extension and the length of the extension being sought.

One factor that affects the length of the requested extension is that federal holidays have limited the dates and times that the government will be able to present evidence to the Grand Jury. The federal grand juries are not sitting during the week of December 22nd (Christmas week) or the week of December 29th (New Years Day week).

The remaining factors that have led to the government’s request for an extension are stated in the Attachment hereto, which the government respectfully requests be placed under seal. The government is requesting that this Attachment be sealed so as not to compromise its ongoing investigation and so as not to reveal matters occurring before the Grand Jury.

4. Given the length of time that this investigation has been ongoing (more than 5 years), the number of intercepted calls involved, and the additional reasons stated in the government’s sealed Attachment, the thirty days available to the government pursuant to Title 18, United States Code, Section 3161(b) in which to file an indictment or information against a defendant based on his arrest will not be sufficient.

The United States estimates that a 90-day extension from the current expiration date of January 7, 2009, to and including April 7, 2009, will be sufficient time within which to return an indictment in this matter. The government does not presently plan to seek another extension of time to indict in this case.

5. Among the factors identified by Congress as relevant to the determination whether time should be extended for indictment are those set forth in 18 U.S.C. § 3161(h)(8)(B), which provide in relevant part:

Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution… that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section; [or]

Whether, in case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.

Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.18 U.S.C. §§ 3161(h)(8)(B)(ii), (iii), and (iv).

6. The government respectfully submits that a 90-day continuance is warranted in this case pursuant to the forgoing provisions. The government has been conducting a diligent and thorough investigation in this case, but the investigation includes multiple defendants and potential defendants as well as thousands of intercepted phone calls, and additional factors warranting an extension of time (as cited in the government’s Attachment) exist. The government cannot complete its investigation and appropriately conclude the investigation within the time allowed under Section 3161(b) of the Speedy Trial Act currently extended.

7. Following telephone calls and/or meetings over the past week, counsel for both Blagojevich and Harris have represented that they do not object to this motion.

WHEREFORE, the United States respectfully requests a 90-day extension of time from January 7, 2009, to and including April 7, 2009, in which to seek an indictment in this case.

Respectfully submitted,

PATRICK J. FITZGERALD
United States Attorney

By: s/ Reid Schar
REID SCHAR
CHRIS NIEWOEHNER
CARRIE HAMILTON
Assistant United States Attorney
United States Attorney’s Office
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-8897

Dated: December 31, 2008

April 7, 2009.

That’s the new Rod Blagojevich indictment deadline being sought by Chicago’s United States Attorney Patrick Fitzgerald.

Too many tapped thousands of telephone calls to analyze.

Too many new witnesses to interview.

Too many potential defendants.

Grand juries on vacation.

But you can look at the sealed attachment, Judge.

And, by the way, attorney’s for Rod Blagojevich and John Harris don’t object.

Here’s the legal filing:

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA )
)
v. ) No. 08 CR 1010
)

JOHN HARRIS )

The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, United States Attorney for the Northern District of Illinois, respectfully moves this Court, pursuant to 18 U.S.C. § 3161(h)(8), for a 90-day extension of time, to and including April 7, 2009, in which to seek the return of an indictment against the defendants, for the following reasons:

1. This investigation was initiated in approximately 2003, and involves multiple potential defendants. Two individuals, defendants Rod R. Blagojevich and John Harris, were charged by way of a criminal complaint on December 9, 2008, with:

(a) conspiring to defraud the citizens of Illinois of their right to his honest services, as well as conspiring to obtain money and property by fraud, in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, 1346, and 1349; and

(b) corruptly soliciting and demanding the firing of Chicago Tribune editorial board members who had been critical of Blagojevich, in exchange for the awarding of millions of dollars in financial assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and § 2.

2. Part of this investigation utilized Court-authorized Title III intercepts over multiple phones and in particular locations.

In the most recent set of Title III intercepts, thousands of phone calls were intercepted between late-October 2008 and early-December 2008.

In addition, this investigation has used confidential witnesses.

In addition, multiple witnesses have come forward in recent weeks to discuss their knowledge of criminal activity in relation to the ongoing investigation.

3. A number of factors have led to the government’s request for an extension and the length of the extension being sought.

One factor that affects the length of the requested extension is that federal holidays have limited the dates and times that the government will be able to present evidence to the Grand Jury. The federal grand juries are not sitting during the week of December 22nd (Christmas week) or the week of December 29th (New Years Day week).

The remaining factors that have led to the government’s request for an extension are stated in the Attachment hereto, which the government respectfully requests be placed under seal. The government is requesting that this Attachment be sealed so as not to compromise its ongoing investigation and so as not to reveal matters occurring before the Grand Jury.

4. Given the length of time that this investigation has been ongoing (more than 5 years), the number of intercepted calls involved, and the additional reasons stated in the government’s sealed Attachment, the thirty days available to the government pursuant to Title 18, United States Code, Section 3161(b) in which to file an indictment or information against a defendant based on his arrest will not be sufficient.

The United States estimates that a 90-day extension from the current expiration date of January 7, 2009, to and including April 7, 2009, will be sufficient time within which to return an indictment in this matter. The government does not presently plan to seek another extension of time to indict in this case.

5. Among the factors identified by Congress as relevant to the determination whether time should be extended for indictment are those set forth in 18 U.S.C. § 3161(h)(8)(B), which provide in relevant part:

Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution… that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section; [or]

Whether, in case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.

Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.18 U.S.C. §§ 3161(h)(8)(B)(ii), (iii), and (iv).

6. The government respectfully submits that a 90-day continuance is warranted in this case pursuant to the forgoing provisions. The government has been conducting a diligent and thorough investigation in this case, but the investigation includes multiple defendants and potential defendants as well as thousands of intercepted phone calls, and additional factors warranting an extension of time (as cited in the government’s Attachment) exist. The government cannot complete its investigation and appropriately conclude the investigation within the time allowed under Section 3161(b) of the Speedy Trial Act currently extended.

7. Following telephone calls and/or meetings over the past week, counsel for both Blagojevich and Harris have represented that they do not object to this motion.

WHEREFORE, the United States respectfully requests a 90-day extension of time from January 7, 2009, to and including April 7, 2009, in which to seek an indictment in this case.

Respectfully submitted,

PATRICK J. FITZGERALD
United States Attorney

By: s/ Reid Schar
REID SCHAR
CHRIS NIEWOEHNER
CARRIE HAMILTON
Assistant United States Attorney
United States Attorney’s Office
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-8897

Dated: December 31, 2008

It’s hard to believe, but Chicago’s United State’s Attorney Patrick Fitzgerald is asking permission to give certain wire taps of Rod Blagojevich that led to his arrest to the Illinois House of Representatives Impeachment Committee.

Fitzgerald seeks to reveal redacted portions of four telephone conversations.

His motion follows:

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: Motion to Disclose )
Intercepted Communications )
) No. 08 CR 1010
)
)
UNITED STATES OF AMERICA )
)

)
ROD BLAGOJEVICH and )
JOHN HARRIS )

The UNITED STATES OF AMERICA, by its attorney, Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, respectfully submits this Motion to Disclose Intercepted Communications to the Special Investigative Committee of the Illinois House of Representatives, and in support of the motion, states as follows:

1. On October 29, 2008, pursuant to Title 18, United States Code, Section 2518, this Court entered an order authorizing the interception of oral communications, for a thirty-day period, on the residential phone of Governor Rod Blagojevich. On November 26, 2008, this Court (through the then-acting chief judge) extended the authorization for another thirty-day period. In November 2008, this Court authorized the interception of oral communications on the cellular phone of Lobbyist 1. Special Agents of the Federal Bureau of Investigation monitored and recorded communications over these target phones.

2.On December 9, 2008, agents of the Federal Bureau of Investigation arrested Governor Blagojevich pursuant to a criminal complaint. The criminal complaint charges Blagojevich with two counts:

a. First, Blagojevich is charged with conspiring to defraud the citizens of Illinois of their right to his honest services, in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, 1346, and 1349. (08 CR 1010, Docket Entry No. 1.) Specifically, the complaint charges that Blagojevich, together with others, obtained and attempted to obtain financial benefits for Blagojevich, members of his family, and third parties including Friends of Blagojevich, in exchange for appointments to state boards and commissions, state employment, state contracts, and access to state funds. Id. ¶ 13(a), ¶¶ 16-68.

It is also charged, as part of that continuing honest services fraud scheme, that Blagojevich conspired and attempted to use his authority to appoint a United States Senator for the purpose of obtaining personal benefits for Blagojevich, including, among other things, appointment as Secretary of Health & Human Services in the President-elect’s administration, and alternatively, a lucrative job which Blagojevich and others schemed to induce a union to provide to him in exchange for appointing an individual whom Blagojevich believed the union officials favored. Id. ¶ 13(c), ¶¶ 86-116.

b. Second, Blagojevich is charged with corruptly soliciting and demanding the firing of Chicago Tribune editorial board members who had been critical of Blagojevich, in exchange for the awarding of millions of dollars in financial assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and § 2. Id. ¶ 13(b), ¶¶ 69-85.

3. The Illinois Constitution grants the state House of Representatives “the sole power to conduct legislative investigations to determine the existence of cause for impeachment . . . .” (FN 1) Ill. Const., Article IV, § 14. On December 15, 2008, the Illinois House of Representative adopted resolution HR1650 by a vote of 113 to zero. The resolution created a Special Investigative Committee “for the purpose of

(i) investigating allegations of misfeasance, malfeasance, nonfeasance, and other misconduct of Governor Rod R. Blagojevich and

(ii) making a recommendation as to whether cause exists for impeachment.”

The resolution requires the Committee, 1 which is composed of 21 members of the House, to submit a report to the full House before the expiration of the 95th General Assembly at midnight on January 14, 2009.

= = = = =
FN 1-The text of HR1650 is attached as Exhibit 1. 1

= = = = =

4. The United States has received a bipartisan request from the Committee for the disclosure of various materials, including intercepted communications. (FN 2) The Committee’s leadership and staff have represented to the government that they seek such disclosure in the interest of making a fully-informed investigation and report, but without interfering with the federal criminal investigation or prosecution.

= = = = =

FN 2-A copy of the letter from the Committee is attached as Exhibit 2. 2 assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and § 2. Id. ¶ 13(b), ¶¶ 69-85.
= = = = =

5. After careful deliberation, the government applies for authorization to disclose a limited number of intercepted communications in redacted form.Although many relevant communications were intercepted, the government believes that, on balance,

it is appropriate to seek the disclosure of four intercepted calls, in redacted form, to the Committee, and that disclosure of the calls by themselves would not interfere with the ongoing criminal investigation.

These calls bear on a discrete episode of criminal conduct alleged in the complaint affidavit, specifically at Paragraph 68(e), and the calls are evidence of a criminal offense that the government was authorized to monitor under the wiretap order.

Under separate cover and under seal, the government provides to this Court for its ex parte, in camera review, both a set of the full audio recordings of these four calls (Exhibit 3) and a set of proposed redacted recordings (Exhibit 4) omitting portions of the conversations not material to the episode described in Paragraph 68(e) of the complaint affidavit. (FN 3)

= = = = =
FN 3-Similarly, the government will also provide to the Court, ex parte (at least for the time being) and under seal subject to a protective order, draft transcripts of the full and the redacted calls when the drafts are completed.
= = = = =

6. The United States takes no position on whether or not the Committee should recommend impeachment, whether the House should file articles of impeachment, or, if articles of impeachment are filed, whether the Senate should convict on any charges. By filing this motion, the United States presents only questions of law for this Court’s consideration and resolution, namely, whether the Special Investigative Committee is qualified to receive disclosure of, and thereafter to use, intercepted communications under 18 U.S.C. § 2517(1) and (2).

7. As discussed more fully below, although Title 18, United States Code, Section 2510, et seq., does not necessarily require the government to obtain judicial authorization before disclosing intercepted communications to other law enforcement or investigative officers, the government does so here out of an abundance of caution and in order to afford the interceptees in the recorded calls an opportunity to be heard and to object, if they so choose, under 18 U.S.C. § 2518(10)(A). Section 2518(10)(A) permits any “aggrieved person,” that is, an interceptee (FN 4), to file a motion to suppress the 4 contents of an intercepted communication.

= = = = =
FN 4-The definition reads in full: “aggrieved person’ means a person who was a party 4 to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11).
= = = = =

8. As a threshold matter of procedure, the government requests authorization to disclose, under seal and subject to a protective order, the full and redacted versions of the four recordings to those interceptees who participated in the respective calls. See § 2518(10)(A) (empowering court to order disclosure of those intercepted communications that, “in the interests of justice,” are necessary to litigate suppression motion). If the Court were to grant such authorization, each interceptee would receive (under seal and subject to a protective order) only those calls in which he participated. (FN-5) The proposed protective order would be submitted to the Court via electronic mail pursuant to the Court’s case management procedures.

= = = = =
FN 5-The government would have no objection to disclosing all four of the redacted versions of the calls to all of the interceptees, including those who were not a party to all four calls. If disclosure to the Special Investigative Committee is ultimately approved, the four calls will likely be viewed together as relating to one alleged criminal episode, and it may thus be appropriate for the interceptees on any one call to receive copies of all four redacted calls in order to respond to this motion.
= = = = =

9. Section 2517(1) of Title 18 authorizes an investigative or law enforcement officer to disclose the contents of intercepted communications to another “investigative or law enforcement officer” for the proper performance of his or her duties:

Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

18 U.S.C. § 2517(1).

10. Section 2510(7) defines “investigative or law enforcement officer” as

“any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”

18 U.S.C. § 2510(7) (emphasis added).

11.For reasons firmly grounded in statutory text and case precedent, the government believes that state legislative officials and their staff who are investigating whether to recommend impeachment qualify as “investigative or law enforcement officer[s]” to whom federal officers may disclose intercepted communications in the proper performance of their duties.

a. First, the text of § 2510(7) is broad, and includes not only those officers who have power “to make arrests,” but rather also includes those empowered “by law” – with no limitation to federal law – “to conduct investigations” of federal offenses. Exercising authority founded on the Illinois Constitution, the House of Representatives enacted – “by law” – the resolution which created the Special Investigative Committee and granted the Committee comprehensive authority to

“investigat[e] allegations of misfeasance, malfeasance, nonfeasance, and other misconduct of Governor Rod R. Blagojevich.”

The broad mandate of the Illinois Constitution and the House resolution encompasses the investigation of alleged federal crimes committed by Blagojevich.

b. Federal courts have construed the scope of an officer’s investigation as including federal offenses so long as the federal offenses may be the predicate for action by the investigatory authority. For example, the Eleventh Circuit affirmed an order permitting disclosure of intercepted communications to the federal House Judiciary Committee, which was investigating whether to recommend impeachment of a federal judge in Florida. In re Grand Jury Proceedings, 841 F.2d 1048, 1054 (11th Cir. 1988), affirming In re Grand Jury 86-3 (Miami), 673 F. Supp. 1569, 1574 (S.D. Fla. 1987). The House Judiciary Committee was qualified to receive disclosure of intercepted communications because it was investigating possible impeachment of the judge, and impeachment may be based on the commission of a federal offense.

c. Similarly, the Sixth Circuit held that where an attorney disciplinary commission could disbar a lawyer for professional misconduct, including the commission of a federal offense, investigation of the federal offense is within the investigating commission’s authority. In re Electronic Surveillance, 49 F.3d 1188, 1190 (6th Cir. 1995). So too with Pennsylvania State Police officers who were conducting, on behalf of the state’s gaming control board, a background investigation of an individual who had applied to the gaming board for a gambling license. In re Application of United States, 431 F. Supp.2d 544, 547 (E.D. Pa. 2006).

12. Because the Special Investigative Committee impeachment investigators qualify to receive the disclosure of the four intercepted communications that the government seeks to disclose, the Committee may further “use” the communications “to the extent such use is appropriate to the proper performance of [their] official duties.” 18 U.S.C. § 2517(2). Both this provision, as well as § 2517(3), permit further disclosure of the communications into the Special Investigative Committee’s record, because such record is compiled as part of a “proceeding held under the authority . . .of any State or any political subdivision thereof.” 18 U.S.C. § 2517(3).

a. The term “proceeding” is broad – indeed the term is modified by the word “any,” which is itself a signal that Congress intended “proceeding” to take a broad meaning. The Seventh Circuit noted, in dictum, that § 2517(3) seems to be complementary to § 2515, which is the statutory provision that contains the general ban on the use of intercepted communications obtained in violation of Title III as evidence in “

any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof . . . .”

18 U.S.C. § 2515 (emphasis added) (quoted by In re High Fructose Corn Syrup Antitrust Litigation, 216 F.3d 621, 624 (7th Cir. 2000)). The Seventh Circuit labeled the two provisions “complementary,” stating that the word “proceeding” in § 2517(3) “seems merely a shorthand for the longer and unambiguous definition in the complementary section 2515.” 216 F.3d at 624.

b. Furthermore, the legislative history makes clear that the text means what it says, and that “proceeding” is not limited to criminal prosecutions. In re Electronic Surveillance, 49 F.3d at 1193 (attorney disciplinary commission is a covered proceeding) (citing Organized Crime Control Act of 1970, Pub.L. No. 91-452, § 902(b), 84 Stat. 947 (1970), and H.R.Rep. No. 91-1549, 1970 U.S.C.C.A.N. 4007, 4036)). As the Sixth Circuit explained, before 1970, the “disclosure of intercepted communications could only be made in connection with state and federal criminal proceedings. Congress amended the subsection (3) in that year to allow disclosure in any authorized proceeding.” 49 F.3d at 1193 (emphasis added).

c.Likewise, federal court decisions interpreting § 2517(1) in the context of disclosures to a federal House Judiciary Committee and a state gambling license commission give a broad definition to the term “any proceeding.” See 841 F.2d 1048, 1054; 431 F. Supp.2d 544, 547.

d. For the reasons stated above (broad statutory text, legislative history, and case precedent), the proceedings before the Special Investigative Committee and any further impeachment proceedings should also be deemed to qualify as “any proceeding” in which the intercepted communications may be disclosed.

13. For all the foregoing reasons, the United States respectfully asks this Court to rule on the questions of law presented and to order that:

a. the United States is authorized to serve, under seal, copies of the full and redacted recordings on the respective interceptees, subject to a proposed protective order that the government will submit to the Court pursuant to its case management procedures;

b. the interceptees and the Special Investigative Committee shall be given an opportunity to respond;

c. after hearing from all parties, the United States is authorized to disclose to the Special Investigative Committee the four intercepted communications identified by the government and redacted as Exhibit 4; and

d. the Special Investigative Committee is authorized to use the intercepted communications as appropriate in the proper performance of official duties, including to introduce the recordings into the proceedings of the Committee and at any further impeachment proceedings.

Respectfully submitted,

PATRICK J. FITZGERALD
United States Attorney

By: /s/Edmond E. Chang
DAVID A. GLOCKNER
EDMOND E. CHANG

Assistant United States Attorneys
219 South Dearborn Street
Fifth Floor
Chicago, Illinois 60604
(312) 886-1000

Date: December 29, 2008

CERTIFICATE OF SERVICEThe undersigned Assistant United States Attorney hereby certifies that the
following document:

Government’s Motion to Disclose Intercepted Communications to the Special Investigative Committee of the Illinois House of Representatives, was served on December 29, 2008, in accordance with FED. R. CRIM. P. 49, FED. R. CIV. P. 5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers, and also served by electronic mail and/or facsimile on the following counsel for the interceptees:

Mr. Edward M. Genson, Mr. Sheldon Sorosky
Genson & Gillespie Kaplan & Sorosky
53 West Jackson Boulevard 158 West Erie Street
Suite 1420 Chicago, Illinois 60610
Chicago, Illinois 60604 312.222.9541 (f)
312.939.3654 (f)

Mr. Daniel Reinberg. Mr. Michael Shepard
Foley & Lardner Hogan & Hartson LLP
321 North Clark Street 4 Embarcadero Center
Suite 2800 22nd Floor
Chicago, Illinois 60610 San Francisco, California 94111
312.832.4700 (f) 415.374.2499 (f)

Mr. Michael Ettinger, Mr. David W. Ellis
Ettinger Besbekos & Schroeder PC Mr. Matt O’Shea
12413 S. Harlem Ave. Staff, Special Investigative Committee
Suite 203 (Via electronic mail)
Palos Heights, Illinois 60463
708.923.0386 (f)

/s/ Edmond E. Chang

EDMOND E. CHANG
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
(312) 886-1000

It’s hard to believe, but Chicago’s United State’s Attorney Patrick Fitzgerald is asking permission to give certain wire taps of Rod Blagojevich that led to his arrest to the Illinois House of Representatives Impeachment Committee.

Fitzgerald seeks to reveal redacted portions of four telephone conversations.

His motion follows:

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: Motion to Disclose )
Intercepted Communications )
) No. 08 CR 1010
)
)
UNITED STATES OF AMERICA )
)

)
ROD BLAGOJEVICH and )
JOHN HARRIS )

The UNITED STATES OF AMERICA, by its attorney, Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, respectfully submits this Motion to Disclose Intercepted Communications to the Special Investigative Committee of the Illinois House of Representatives, and in support of the motion, states as follows:

1. On October 29, 2008, pursuant to Title 18, United States Code, Section 2518, this Court entered an order authorizing the interception of oral communications, for a thirty-day period, on the residential phone of Governor Rod Blagojevich. On November 26, 2008, this Court (through the then-acting chief judge) extended the authorization for another thirty-day period. In November 2008, this Court authorized the interception of oral communications on the cellular phone of Lobbyist 1. Special Agents of the Federal Bureau of Investigation monitored and recorded communications over these target phones.

2.On December 9, 2008, agents of the Federal Bureau of Investigation arrested Governor Blagojevich pursuant to a criminal complaint. The criminal complaint charges Blagojevich with two counts:

a. First, Blagojevich is charged with conspiring to defraud the citizens of Illinois of their right to his honest services, in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, 1346, and 1349. (08 CR 1010, Docket Entry No. 1.) Specifically, the complaint charges that Blagojevich, together with others, obtained and attempted to obtain financial benefits for Blagojevich, members of his family, and third parties including Friends of Blagojevich, in exchange for appointments to state boards and commissions, state employment, state contracts, and access to state funds. Id. ¶ 13(a), ¶¶ 16-68.

It is also charged, as part of that continuing honest services fraud scheme, that Blagojevich conspired and attempted to use his authority to appoint a United States Senator for the purpose of obtaining personal benefits for Blagojevich, including, among other things, appointment as Secretary of Health & Human Services in the President-elect’s administration, and alternatively, a lucrative job which Blagojevich and others schemed to induce a union to provide to him in exchange for appointing an individual whom Blagojevich believed the union officials favored. Id. ¶ 13(c), ¶¶ 86-116.

b. Second, Blagojevich is charged with corruptly soliciting and demanding the firing of Chicago Tribune editorial board members who had been critical of Blagojevich, in exchange for the awarding of millions of dollars in financial assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and § 2. Id. ¶ 13(b), ¶¶ 69-85.

3. The Illinois Constitution grants the state House of Representatives “the sole power to conduct legislative investigations to determine the existence of cause for impeachment . . . .” (FN 1) Ill. Const., Article IV, § 14. On December 15, 2008, the Illinois House of Representative adopted resolution HR1650 by a vote of 113 to zero. The resolution created a Special Investigative Committee “for the purpose of

(i) investigating allegations of misfeasance, malfeasance, nonfeasance, and other misconduct of Governor Rod R. Blagojevich and

(ii) making a recommendation as to whether cause exists for impeachment.”

The resolution requires the Committee, 1 which is composed of 21 members of the House, to submit a report to the full House before the expiration of the 95th General Assembly at midnight on January 14, 2009.

= = = = =
FN 1-The text of HR1650 is attached as Exhibit 1. 1

= = = = =

4. The United States has received a bipartisan request from the Committee for the disclosure of various materials, including intercepted communications. (FN 2) The Committee’s leadership and staff have represented to the government that they seek such disclosure in the interest of making a fully-informed investigation and report, but without interfering with the federal criminal investigation or prosecution.

= = = = =

FN 2-A copy of the letter from the Committee is attached as Exhibit 2. 2 assistance from the State of Illinois, 18 U.S.C. § 666(a)(1)(B) and § 2. Id. ¶ 13(b), ¶¶ 69-85.
= = = = =

5. After careful deliberation, the government applies for authorization to disclose a limited number of intercepted communications in redacted form.Although many relevant communications were intercepted, the government believes that, on balance,

it is appropriate to seek the disclosure of four intercepted calls, in redacted form, to the Committee, and that disclosure of the calls by themselves would not interfere with the ongoing criminal investigation.

These calls bear on a discrete episode of criminal conduct alleged in the complaint affidavit, specifically at Paragraph 68(e), and the calls are evidence of a criminal offense that the government was authorized to monitor under the wiretap order.

Under separate cover and under seal, the government provides to this Court for its ex parte, in camera review, both a set of the full audio recordings of these four calls (Exhibit 3) and a set of proposed redacted recordings (Exhibit 4) omitting portions of the conversations not material to the episode described in Paragraph 68(e) of the complaint affidavit. (FN 3)

= = = = =
FN 3-Similarly, the government will also provide to the Court, ex parte (at least for the time being) and under seal subject to a protective order, draft transcripts of the full and the redacted calls when the drafts are completed.
= = = = =

6. The United States takes no position on whether or not the Committee should recommend impeachment, whether the House should file articles of impeachment, or, if articles of impeachment are filed, whether the Senate should convict on any charges. By filing this motion, the United States presents only questions of law for this Court’s consideration and resolution, namely, whether the Special Investigative Committee is qualified to receive disclosure of, and thereafter to use, intercepted communications under 18 U.S.C. § 2517(1) and (2).

7. As discussed more fully below, although Title 18, United States Code, Section 2510, et seq., does not necessarily require the government to obtain judicial authorization before disclosing intercepted communications to other law enforcement or investigative officers, the government does so here out of an abundance of caution and in order to afford the interceptees in the recorded calls an opportunity to be heard and to object, if they so choose, under 18 U.S.C. § 2518(10)(A). Section 2518(10)(A) permits any “aggrieved person,” that is, an interceptee (FN 4), to file a motion to suppress the 4 contents of an intercepted communication.

= = = = =
FN 4-The definition reads in full: “aggrieved person’ means a person who was a party 4 to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11).
= = = = =

8. As a threshold matter of procedure, the government requests authorization to disclose, under seal and subject to a protective order, the full and redacted versions of the four recordings to those interceptees who participated in the respective calls. See § 2518(10)(A) (empowering court to order disclosure of those intercepted communications that, “in the interests of justice,” are necessary to litigate suppression motion). If the Court were to grant such authorization, each interceptee would receive (under seal and subject to a protective order) only those calls in which he participated. (FN-5) The proposed protective order would be submitted to the Court via electronic mail pursuant to the Court’s case management procedures.

= = = = =
FN 5-The government would have no objection to disclosing all four of the redacted versions of the calls to all of the interceptees, including those who were not a party to all four calls. If disclosure to the Special Investigative Committee is ultimately approved, the four calls will likely be viewed together as relating to one alleged criminal episode, and it may thus be appropriate for the interceptees on any one call to receive copies of all four redacted calls in order to respond to this motion.
= = = = =

9. Section 2517(1) of Title 18 authorizes an investigative or law enforcement officer to disclose the contents of intercepted communications to another “investigative or law enforcement officer” for the proper performance of his or her duties:

Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

18 U.S.C. § 2517(1).

10. Section 2510(7) defines “investigative or law enforcement officer” as

“any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”

18 U.S.C. § 2510(7) (emphasis added).

11.For reasons firmly grounded in statutory text and case precedent, the government believes that state legislative officials and their staff who are investigating whether to recommend impeachment qualify as “investigative or law enforcement officer[s]” to whom federal officers may disclose intercepted communications in the proper performance of their duties.

a. First, the text of § 2510(7) is broad, and includes not only those officers who have power “to make arrests,” but rather also includes those empowered “by law” – with no limitation to federal law – “to conduct investigations” of federal offenses. Exercising authority founded on the Illinois Constitution, the House of Representatives enacted – “by law” – the resolution which created the Special Investigative Committee and granted the Committee comprehensive authority to

“investigat[e] allegations of misfeasance, malfeasance, nonfeasance, and other misconduct of Governor Rod R. Blagojevich.”

The broad mandate of the Illinois Constitution and the House resolution encompasses the investigation of alleged federal crimes committed by Blagojevich.

b. Federal courts have construed the scope of an officer’s investigation as including federal offenses so long as the federal offenses may be the predicate for action by the investigatory authority. For example, the Eleventh Circuit affirmed an order permitting disclosure of intercepted communications to the federal House Judiciary Committee, which was investigating whether to recommend impeachment of a federal judge in Florida. In re Grand Jury Proceedings, 841 F.2d 1048, 1054 (11th Cir. 1988), affirming In re Grand Jury 86-3 (Miami), 673 F. Supp. 1569, 1574 (S.D. Fla. 1987). The House Judiciary Committee was qualified to receive disclosure of intercepted communications because it was investigating possible impeachment of the judge, and impeachment may be based on the commission of a federal offense.

c. Similarly, the Sixth Circuit held that where an attorney disciplinary commission could disbar a lawyer for professional misconduct, including the commission of a federal offense, investigation of the federal offense is within the investigating commission’s authority. In re Electronic Surveillance, 49 F.3d 1188, 1190 (6th Cir. 1995). So too with Pennsylvania State Police officers who were conducting, on behalf of the state’s gaming control board, a background investigation of an individual who had applied to the gaming board for a gambling license. In re Application of United States, 431 F. Supp.2d 544, 547 (E.D. Pa. 2006).

12. Because the Special Investigative Committee impeachment investigators qualify to receive the disclosure of the four intercepted communications that the government seeks to disclose, the Committee may further “use” the communications “to the extent such use is appropriate to the proper performance of [their] official duties.” 18 U.S.C. § 2517(2). Both this provision, as well as § 2517(3), permit further disclosure of the communications into the Special Investigative Committee’s record, because such record is compiled as part of a “proceeding held under the authority . . .of any State or any political subdivision thereof.” 18 U.S.C. § 2517(3).

a. The term “proceeding” is broad – indeed the term is modified by the word “any,” which is itself a signal that Congress intended “proceeding” to take a broad meaning. The Seventh Circuit noted, in dictum, that § 2517(3) seems to be complementary to § 2515, which is the statutory provision that contains the general ban on the use of intercepted communications obtained in violation of Title III as evidence in “

any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof . . . .”

18 U.S.C. § 2515 (emphasis added) (quoted by In re High Fructose Corn Syrup Antitrust Litigation, 216 F.3d 621, 624 (7th Cir. 2000)). The Seventh Circuit labeled the two provisions “complementary,” stating that the word “proceeding” in § 2517(3) “seems merely a shorthand for the longer and unambiguous definition in the complementary section 2515.” 216 F.3d at 624.

b. Furthermore, the legislative history makes clear that the text means what it says, and that “proceeding” is not limited to criminal prosecutions. In re Electronic Surveillance, 49 F.3d at 1193 (attorney disciplinary commission is a covered proceeding) (citing Organized Crime Control Act of 1970, Pub.L. No. 91-452, § 902(b), 84 Stat. 947 (1970), and H.R.Rep. No. 91-1549, 1970 U.S.C.C.A.N. 4007, 4036)). As the Sixth Circuit explained, before 1970, the “disclosure of intercepted communications could only be made in connection with state and federal criminal proceedings. Congress amended the subsection (3) in that year to allow disclosure in any authorized proceeding.” 49 F.3d at 1193 (emphasis added).

c.Likewise, federal court decisions interpreting § 2517(1) in the context of disclosures to a federal House Judiciary Committee and a state gambling license commission give a broad definition to the term “any proceeding.” See 841 F.2d 1048, 1054; 431 F. Supp.2d 544, 547.

d. For the reasons stated above (broad statutory text, legislative history, and case precedent), the proceedings before the Special Investigative Committee and any further impeachment proceedings should also be deemed to qualify as “any proceeding” in which the intercepted communications may be disclosed.

13. For all the foregoing reasons, the United States respectfully asks this Court to rule on the questions of law presented and to order that:

a. the United States is authorized to serve, under seal, copies of the full and redacted recordings on the respective interceptees, subject to a proposed protective order that the government will submit to the Court pursuant to its case management procedures;

b. the interceptees and the Special Investigative Committee shall be given an opportunity to respond;

c. after hearing from all parties, the United States is authorized to disclose to the Special Investigative Committee the four intercepted communications identified by the government and redacted as Exhibit 4; and

d. the Special Investigative Committee is authorized to use the intercepted communications as appropriate in the proper performance of official duties, including to introduce the recordings into the proceedings of the Committee and at any further impeachment proceedings.

Respectfully submitted,

PATRICK J. FITZGERALD
United States Attorney

By: /s/Edmond E. Chang
DAVID A. GLOCKNER
EDMOND E. CHANG

Assistant United States Attorneys
219 South Dearborn Street
Fifth Floor
Chicago, Illinois 60604
(312) 886-1000

Date: December 29, 2008

CERTIFICATE OF SERVICEThe undersigned Assistant United States Attorney hereby certifies that the
following document:

Government’s Motion to Disclose Intercepted Communications to the Special Investigative Committee of the Illinois House of Representatives, was served on December 29, 2008, in accordance with FED. R. CRIM. P. 49, FED. R. CIV. P. 5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers, and also served by electronic mail and/or facsimile on the following counsel for the interceptees:

Mr. Edward M. Genson, Mr. Sheldon Sorosky
Genson & Gillespie Kaplan & Sorosky
53 West Jackson Boulevard 158 West Erie Street
Suite 1420 Chicago, Illinois 60610
Chicago, Illinois 60604 312.222.9541 (f)
312.939.3654 (f)

Mr. Daniel Reinberg. Mr. Michael Shepard
Foley & Lardner Hogan & Hartson LLP
321 North Clark Street 4 Embarcadero Center
Suite 2800 22nd Floor
Chicago, Illinois 60610 San Francisco, California 94111
312.832.4700 (f) 415.374.2499 (f)

Mr. Michael Ettinger, Mr. David W. Ellis
Ettinger Besbekos & Schroeder PC Mr. Matt O’Shea
12413 S. Harlem Ave. Staff, Special Investigative Committee
Suite 203 (Via electronic mail)
Palos Heights, Illinois 60463
708.923.0386 (f)

/s/ Edmond E. Chang

EDMOND E. CHANG
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
(312) 886-1000

STATEMENT OF U. S. ATTORNEY PATRICK J. FITZGERALD REGARDING THE ONGOING INVESTIGATION OF ALLEGED PUBLIC CORRUPTION IN ILLINOIS

CHICAGO – Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, today made the following statement in response to inquiries about the statement issued by the Obama Transition regarding the ongoing investigation of alleged public corruption in Illinois state government:

“After the President-elect announced an internal transition team investigation, the United States Attorney’s Office requested a brief delay of the release of a report of that investigation to conduct certain interviews.”

Can you spell “Scooter Libby?”

STATEMENT OF U. S. ATTORNEY PATRICK J. FITZGERALD REGARDING THE ONGOING INVESTIGATION OF ALLEGED PUBLIC CORRUPTION IN ILLINOIS

CHICAGO – Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, today made the following statement in response to inquiries about the statement issued by the Obama Transition regarding the ongoing investigation of alleged public corruption in Illinois state government:

“After the President-elect announced an internal transition team investigation, the United States Attorney’s Office requested a brief delay of the release of a report of that investigation to conduct certain interviews.”

Can you spell “Scooter Libby?”