Too Little, Too Late, "Too Hard"

Attorney Andrew Cohen analyzes legal issues for CBS News and
If embattled and embittered Illinois Governor Rod R. Blagojevich proved anything today it was that he is a doer and not a thinker. Over and over again during his closing argument at his impeachment trial before the state senate in Springfield, Blagojevich apologized for "pushing too hard" against bureaucracy, regulations and, well, the rule of law.

There is a place in America for people who circumvent rules and standards to achieve their aims-but surely that place is not a governor's mansion. Or, as impeachment prosecutor David Ellis better put it: "The Governor only likes to play by his rules" like showing up at closing argument to declare his innocence after avoiding the opportunity to do so under oath and subject to cross examination.

Several themes emerged from the Governor's 45-minute-long last likely stand in politics. And each of these themes is likely to re-emerge if and when Blagojevich faces federal criminal charges for bribery and corruption. Indeed, unless the facts of the case against the Governor change dramatically between now and trial, we have just witnessed a fairly thorough preview of what we ought to expect when Blagojevich's liberty and not just his job are on the line.

For example, the Governor declared repeatedly that he "never had a conversation where I intended to break any law." (Emphasis added). This is not just a Clintonian parsing of words. It is designed to tell us that the Blagojevich defense will focus less upon the content of what he said on those allegedly incriminating audiotapes and more upon his state of mind at the time he said them. Judges and juries hear this defense all the time-it's a riff on the old Steve Martin gag line "I forgot that murder was against the law"-and it rarely works.

Another consistent message from Blagojevich was that he ultimately did nothing much different on behalf of his constituents than what many other political leaders do all the time. For example, the Governor discussed how his administration blew off the Food and Drug Administration to purchase prescription drugs from Canada-and then said that if he were to lose his office for such an endeavor then people like John McCain and Edward Kennedy and Rahm Emanuel should lose theirs as well since they also thought that a Canadian pill buy-back was a good idea. But an "I'm no worse than anyone else" defense is hardly a winning one.

Finally, the Governor made it clear that he is going to offer "every possible explanation" for his seemingly inexplicable comments about the alleged "sale" of Barack Obama's Senate seat, among other things. The lawyer in me thinks this means that his defense at trial is going to focus upon the ambiguities contained in those tapes (which none of us here on the outside have ever heard).

There is not much guesswork here. Several senators already have said publically that they thought the audiotape snippets they heard on Tuesday were underwhelming. Team Blagojevich is going to try to capitalize on that information as it prepares to deal with jurors who will sit in judgment on him at trial. It wants to highlight and then obliterate the line that serves as a border between bribery and political arm-twisting.

Even though he's losing his job, today was not a terrible day for the Governor. He didn't look or sound like a maniac. He got to try out some defenses. And no one interrupted him during his 48-minutes of fame on cable television. On the flip side, U.S. Attorney Patrick Fitzgerald, the prosecutor against him, got a free preview of the defense as well as a good indication of how parts of those audiotapes "play" to a larger audience. Act II of this drama is about to end. Act III figures to be a whopper.


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