By CBS News legal analyst Andrew Cohen
Illinois Gov. Rod Blagojevich is caught between two pincers, legal and political. What is likely to help his legal defense will hurt him politically. And what is likely to prolong his political career is likely to increase his chances of spending time in the pokey.
For example, if the governor's defense attorneys were to assert some sort of insanity or incompetency defense to aid him in his criminal case — he went plumb out of his mind during the period in question and therefore had no criminal intent — the state's Attorney General, Lisa Madigan, would be able to use such a defense in her effort to oust the governor from office under the Illinois constitutional provision that determines when a chief executive is unfit to lead. Madigan would be able to come before the Illinois Supreme Court and say: See? Even the governor himself concedes he isn't up to par.
And if Blagojevich's attorneys respond to the AG's complaint last week by alleging that their guy was and is "in his right mind" — that he is fit to be governor under the state standard -- it will be hard later for them to use any sort of defense that focuses upon his intent at the time the taped conversations took place. In other words, eventually, the governor is going to have to choose which forum (legal or political) matters most to him. Now, to you and me this would be easy: we'd try to prevent ourselves from going to prison. We'll see what Blagojevich does.
In the meantime, I have yet to see a defense theory about the case that solves this particular dilemma or otherwise offers a way out for the governor. Sure, his attorneys will argue that the taped conversations were obtained illegally. They will almost certainly lose that battle. And they will argue that it was all show and no go—that the governor's bravado was bluster and not actionable. That too, is a non-starter.
I don't for a minute buy into this week's latest "conventional wisdom" that suggests the federal corruption case against the governor is weak because all he did was "talk" about accepting bribes. The federal prisons are littered with people who just "talked" about committing crimes—especially the sort of "white-collar" crimes we are dealing with here. And, in many cases, the "talk" from these convicted folks was a lot less clear and consistent and incriminating than are the off-the-charts wire-tapped hits allegedly coming from Blagojevich's mouth.