U.S. District Court Judge James Zagel said Rod Blagojevich's retrial will start the week of Jan. 4, but he did not set a specific date. jurors deadlocked last week on all but one of 23 charges against the former governor and four charges against his brother.
The lawyer for Robert Blagojevich delivered the surprise news to his client in a brief phone call moments after the hearing. The attorney, Michael Ettinger, told the Nashville, Tenn., businessman, "You're free." He said Robert Blagojevich responded "Oh my god, you're kidding!"
Federal prosecutors said their decision was based on Robert Blagojevich's less central role in allegedly scheming to sell or trade an appointment to President Barack Obama's old Senate seat, and to pressure people for campaign donations.
Jurors had said they were split on the charges against Robert, and some said they did not want to see him retried.
The brothers have denied any wrongdoing.
Ettinger said Robert Blagojevich does not intend to testify against his brother. He said he would have to obey any subpoena, but that he could take the 5th amendment to avoid self incrimination.
Zagel said he probably won't allow the former governor more than two taxpayer-funded lawyers when the case begins anew. But the judge said he would be open to allowing more attorneys if they volunteered their time, or to allowing attorneys paid by a benefactor.
Rod Blagojevich says he's broke after his campaign fund was depleted by paying attorneys in his first trial. One of his lawyers said after the hearing that no one has left his defense team, despite media reports.
"We're going to meet with the governor and decide what is best for him," said attorney Sam Adam Sr.