Fundraiser A: My Fight for Freedom and Justice

FUNDRAISER A

MY FIGHT

FOR FREEDOM

AND JUSTICE

Robert Blagojevich

NIU PRESS / DeKalb, IL

NIU Press / DeKalb, IL

Northern Illinois University Press, DeKalb, Illinois 60115

© 2015 by Northern Illinois University Press

All rights reserved

Printed in the United States

24 23 22 21 20 19 18 17 16 15 1 2 3 4 5

978-0-87580-488-0 (cloth)

978-1-60909-174-3 (e-book)

Design by Shaun Allshouse

Cover by Yuni Dorr

Library of Congress Cataloging-in-Publication Data

is available online at http://catalog.loc.gov

Contents

Acknowledgments

Foreword by Leonard Cavise

Prologue

Chapter One: Brother’s Keeper

Chapter Two: Fundraising 101

Chapter Three: Quid Pro Quos

Chapter Four: The Congressman’s Emissaries

Chapter Five: Wake Up Call

Chapter Six: The Toll

Chapter Seven: Indicted

Chapter Eight: La-la Land

Chapter Nine: Reality Check

Chapter Ten: Two Different Profiles

Chapter Eleven: Is That All There Is?

Chapter Twelve: Stay Focused

Chapter Thirteen: Where Did That Come From?

Chapter Fourteen: A Game of Chicken

Chapter Fifteen: Unfinished Business

Epilogue

Acknowledgments

I would like to thank the following people for their help and support:

Many thanks to Steve Fiffer, a Guggenheim Fellowship winner, for his editorial assistance and encouragement. You are the best at what you do!

Thank you Linda Manning and the Northern Illinois University Press for believing in my story and giving it a chance to be read.

Michael Ettinger, Cheryl Schroeder, and Robyn Molaro, my Guardian Angels thank you for standing with me during the toughest challenge of my life. I didn’t have a chance against the full force of the United States government without your legal expertise, determination, fearlessness, and good humor.

Eric Thrailkill, Tom Thrailkill, and Andy Martin, you guys were unconditionally there for me when I needed you. I’ll never forget what you did for me.

To my wife Julie and my son Alex for your unwavering belief in me. I love you both!

Foreword

The trial of Illinois Governor Rod Blagojevich and his brother Robert was national news. In Chicago, it was daily headline news. It was the latest in a series of trials of the century, especially for Illinoisans who were about to see the third of their last four governors go to jail for corruption. I watched the trial at relatively close range because, as a law professor, I was using the trial in my classes and, as a frequent media commentator, I had to distill what happened into manageable sound bites or brief commentary. When Robert told me he was writing this book I was thrilled, not only because of the enticing prospect of getting to know what really happened, but also because of the important social interest served by a close-up look at what many saw as a federal abuse of power in the criminal justice system. The government’s prosecution of Robert was in all senses wrongful but, nonetheless, prosecutors tenaciously pursued charges long after it was obvious that Robert was innocent. The arrogance of that use of power is a central theme of this book.

In Fundraiser A, we now get the story in dramatic and sometimes riveting fashion from the defendant himself. As Robert told the media after the verdict, I have lived through the most surreal experience anyone could live through. This has been, from the beginning, a slow bleed both financially, emotionally, and otherwise. After reading Robert’s complete story, I found him to be an astute if sometimes flabbergasted observer who still doesn’t quite believe this happened to him and his family. The criminal justice system in this country is flawed, and the power given to prosecutors is excessive. There’s nothing new in those observations, but to really understand why this happened to Robert is simple: it’s the story of overreaching prosecutorial power and the adversarial system gone bad.

Chicago has certainly seen its share of circus-like trials, but this one promised to be the best, even without any dead bodies. Right from the day the US attorney announced the indictment, he promised a story of corruption that would make Lincoln roll over in his grave. We all waited for the smoking guns, the stories of drugs, sex, lies, and greed sure to come.

While the governor was talking on tape (forty-five days’ worth of tape), his main advisors—John Wyma, Chris Kelly, Bob Greenlee, John Harris, and Alonzo Monk—were talking directly to the government because they had legal problems of their own. Chiefs of staff, advisors, and deputy governors—colleagues who had worked closely with Rod for years—were the witnesses the government intended to use to supplement the tapes. Some would be offered legal immunity in exchange for their testimony against Blagojevich, some would start talking right away to save their own skin, and one would be sent back to the Blagojevich campaign headquarters to spy.

Dropped into this maelstrom and soon to become an important part of this story was Robert Blagojevich, the conservative Republican businessman from Tennessee who, to many observers, always seemed to be an innocent in a den of predators. The governor had asked Robert to raise funds for four months before the 2010 off-year elections. Robert had no political experience, didn’t really know anybody in Illinois, didn’t have a very good relationship with his brother, and didn’t like his brother’s too liberal and fiscally irresponsible politics, but, nonetheless, said he would do it. Why? This is a question he continues to ask himself. Because Rod needed somebody he could trust? Because he hoped to repair a strained relationship? Because, as a businessman, he knew about money and could keep the accounts? In any event, he left behind his wife, home, and business in Tennessee to come to Chicago to do something he had never done before—fundraise for a politician.

Why Robert agreed to step into a campaign already known to be under investigation is another judgment for the reader to make. Conventional wisdom would mandate treating the governor at a very long arm’s length. But this was his brother. And for the next year Robert was at the heart of the biggest corruption case in many years. Now, with this book, we find out all the behind-the-scenes action. As he notes in his trial journal, As a citizen, I can’t believe this is still happening to me, and no one in power cares—unchecked unrestricted power.

Robert Blagojevich was surprisingly naïve about the FBI, the federal prosecutors, and the criminal justice system. He thought he could just sit down with the FBI and clear this whole thing up and be back on his way. Didn’t they know that it was just Rod talking and talking? It never crossed his mind that the feds might attempt to use him, to make him flip and testify against his brother. It never occurred to him that maybe he and the governor would plead guilty to something in a package deal. It never occurred to him that nobody in the government really cared that he was innocent. This case was too big for that. Luckily, Robert found the right criminal defense lawyer who told him, in no uncertain terms, that this trial is not about clearing anything up. It’s a war, led by self-righteous, zealot extremists, and, Robert, you’re in it.

This is what happens to almost everybody who enters the criminal justice system for the first time—guilty or innocent. The government speaks, and everything changes. The government uses its vast power and unlimited resources, and the defendant bleeds. Financial ruin is almost a certainty. Robert Blagojevich spent over three-quarters of a million dollars on his defense. As he said, while describing the loss of his business and his home, we were essentially in the process of dismantling thirty years of hard work. He’s lucky he had the money.

Most defendants can’t make bond like Robert did. Most lose their jobs, possessions, and sometimes their families into the black abyss of seeking justice. Many eventually go to prison—African Americans more than others—where they face so much more than tangible loss. The loss of dignity and freedom, the utter humiliation, the loss of self-respect. Robert was spared that disaster, but he tells us how it was constantly on his mind and how his brother never seemed to think about it.

Robert learned more than he ever wanted to know about the criminal justice system. He learned that more than 95 percent (depending on the jurisdiction) of all defendants plead guilty. Only an infinitesimal 4–5 percent choose to fight back. He was shocked to learn that in no way was it to be a fair fight. The government decides whom to charge and what the charges will be. The prosecutors have the FBI, the DEA, the crime laboratories, and all the resources of the federal government. They have the power of the investigatory subpoena, which usually means that they get to examine and threaten all witnesses, whether or not before a grand jury, and long before the defense even has a chance to talk with them. He learned that the government can take as long as they want to investigate, and that, even if they decide not to prosecute, they can change their mind and keep the case open for a very long time. He learned that, even when a case is dropped, the government doesn’t say you’re innocent, and certainly not we’re sorry we did this to your life.

He learned that a jury of peers is a group of people with whom you have little in common, who are placed in judgment of you by a judge who asks most of the questions and then tells them about law they probably can’t understand. He learned that, while the Supreme Court was considering whether a theft of honest services charge (one of the charges pending in this case) is unconstitutionally vague, the prosecutor can just strike preemptively and file more charges in a superseding indictment so that whatever the Supreme Court ultimately decides, it won’t make any difference.

He learned that when something good for the defense showed up in the tapes, his lawyers couldn’t use it unless the judge said they could, and the judge was prosecution-minded. People don’t realize that the judge who presides over a case—the largest percentage of whom are former prosecutors themselves—effectively decides how the case will progress. Robert tells us of how perturbed he was about many of the judge’s rulings, in addition to the judge’s habit of usually being forty-five minutes late for the start of court, which Robert estimates cost him $15,000 in attorney time.

One of the biggest surprises to Robert was that the criminal trial is a shell game. Neither side knows what the other is going to do. Are they going to call this particular witness, and, if so, when, to say what, and what will the judge allow on cross-examination? To be fair, the defense plays the same game—not telling the government if the defendant will testify or even if there will be a defense. And Robert watched, often comparing the process to his life in business. If he had gone to business meetings with as little definite information about what would be on the agenda, he would have considered himself woefully unprepared.

Robert’s layman’s eye gives us a fresh, honest, and forthright perspective on the inner workings of one of the most complex and high-profile criminal cases in recent memory. That’s what is so refreshing about this book. I have since met Robert on more than one occasion. He has lectured to my classes. He is an utterly believable but now thoroughly angry citizen who wants nothing more now than to tell America how unfairly he was treated by a system that allows such brutal treatment as a matter of course.

The subtext to the book, of course, is Robert’s relationship with his brother. The press tried constantly to use the thinness of their relationship to turn the trial into a long-running soap opera. Were the brothers close? Were they even speaking to each other? Or was this relationship one more casualty of the stupid, wasteful, and useless prosecution against Robert—a broken family relationship. Another example of the adversarial system gone bad.

Leonard L. Cavise

Professor of Law

DePaul College of Law

Prologue

April 14, 2009

This is what it’s like to be arraigned by the US government on criminal charges that carry a potential sentence of five to seven years in prison.

You enter the Dirksen Federal Building in downtown Chicago, pass through security, get on the elevator, and exit on the twenty-fifth floor. You run a gauntlet of US marshals, newspaper reporters, and television sketch artists, and then enter a side door into a conference room outside the courtroom.

While you wait to be called to the courtroom, you move to the floor-to-ceiling windows and look to the plaza below. You wish you were one of the people down there going about his normal business—because for the last four months nothing in your life has been normal.

You exchange smiles with your lawyers, who are costing you a lot of money. You pace. You look out the window again.

When you are finally called before the judge, you feel dwarfed in a room the size of a high school gymnasium. The seal of the US District Court for the Northern District of Illinois on the wall behind the judge stares down at you, a reminder that this is the home team’s court. You are more than aware that your opponent, the US attorney, wins 96 percent of the time.

Your lawyer senses your discomfort and motions for you to take a seat at the defense table. The prosecution’s table is closer to the jury box, more evidence of the home field advantage.

While you wait for the proceeding to begin you try to clear your mind. You visualize yourself testifying . . . and doing well. You imagine the jury understanding that you did nothing wrong, that you are collateral damage, an innocent player in the government’s attempt to convict yet another governor of the state of Illinois, your brother.

And suddenly, you feel calm and confident. I can survive this, you think to yourself. This is a test of my character and will and faith, and I am going to win because I’ve done nothing wrong. I’m a businessman from Nashville with no experience in politics who responded to his brother’s request for help in raising campaign funds. Total time on the job: four months!

Your character is tested sixty seconds later when your codefendant, your brother, the recently impeached former governor, enters the courtroom. You haven’t seen each other in four months, haven’t spoken for weeks. Initially, he looks slightly disoriented and lost. But then he switches into campaign mode, shaking hands with spectators as he comes down the aisle. He even tries to shake hands with a prosecutor. She turns her back on him and walks away.

You steel yourself for your reunion as he approaches the defense table. You expect him to extend his hand, give you a hug. You expect that he’ll apologize for dragging you into this mess. None of that happens. Instead, he leans over the table and says, You don’t look like a criminal to me.

You don’t smile or laugh. This day is not a joke. You look at him without emotion and say, You look like you need a haircut.

The judge, James B. Zagel of the US District Court for the Northern District of Illinois, enters and you rise. Then you are called to the bench to hear the charges filed against you. You stand there with your attorneys and your brother and his attorneys, and you raise your right hand and are sworn in by the court clerk. Looking at your brother, you wonder what your parents would have thought of this moment, seeing their sons arraigned in federal court together. You know they would have believed in your innocence, but you also know this would have broken their hearts.

The judge’s first question surprises you. He asks if you are using drugs. No, you say. Then he asks if you understand the charges. You say, Yes, and on your attorney’s advice waive the reading of the eighty-page indictment. The judge then asks his final question: how do you plead? You say, Not guilty, firmly, with conviction, as does your brother.

And that’s it. After just a few minutes the proceeding is over. Your day as a newly arraigned defendant, however, is just beginning.

You go to meet your case manager, the same person who interviewed you on the phone a week earlier, requesting all your financial information. You turn in your passport and sign an affidavit attesting that you own no firearms.

The calm and confidence you felt earlier disappears. These proceedings begin to make you feel like a criminal. You fight the feeling. You know you’ve always tried to do the right thing, have never been convicted of anything. You know you are innocent, but these indignities are wearing you down. They are wearing down your wife and son, too. Your friends. They are decimating the business you built and your bank account. Your health.

Just when you think you can go home and decompress, your case manager hands you a plastic cup. We need a urine sample, he explains. Telling the judge you weren’t taking any drugs is not good enough.

In the men’s room, the commode in the corner is surrounded by waist-high mirrors. You can’t help but laugh at the absurdity of this. You think back to your twenty-two years of active duty and reserve service in the US Army. You not only had to give your own sample, you administered piss tests to the troops from time to time.

As you stand in front of the toilet, a surprise. Your case manager turns his back to give you a moment of privacy. It is the first time during this ordeal that a representative of your government has shown you any humanity. You record the scene. Later, you will call him to thank him for such a small but important gesture.

Next stop: the US marshal’s office, where you are to be fingerprinted and photographed. The office is protected by heavy-duty bars not unlike what you’d find in a prison. Hearing the hard clang of the barred door closing behind you is a sobering reality check.

The marshal tells you that he had the honor of fingerprinting the governor when he came through. You sense he’s trying to be nice, but you find it strange that he would consider it an honor to process your brother. You’ve fallen through the looking glass. You have to visit the offices of the Federal Bureau of Investigation (FBI), a ten-minute drive from the Loop, for further processing. Before leaving the Dirksen Building, your attorney tells you it would be a good idea to stop and speak with the reporters who have gathered in a designated area in the lobby. You’re surprised that he doesn’t tell you what to say. Knowing you could screw things up, you are apprehensive. You are also worried that your anger over being indicted might get the best of you. Potential jurors will be watching the news. You don’t want to come across as a hothead.

You avoid saying anything you’ll regret by sticking to basic themes. You say you’re prepared to cope with the charges and work through them. You stress that you are an innocent man and look forward to getting your name back.

When a reporter asks about your relationship with your brother, your attorney jumps in and saves you from having to answer. It’s obvious this kind of situation would cause strain on any relationship, but everything is fine between the brothers, he says. Not really, you think.

At the FBI offices on Roosevelt Road, Agent James J. Cicchini escorts you to get your fingerprints and mug shot for the bureau’s files. You recognize him as the agent who woke you up at 6:21 a.m. on December 9, 2008. On that morning, as he was presenting you with subpoenas regarding the Friends of Blagojevich campaign, his fellow agents were arresting your brother. He is very polite, but you are in no mood to talk. He is the enemy.

While Agent Cicchini waits for a technician to take your prints and pictures, you can’t help overhearing a conversation he has with a female agent. They talk happily about their kids. It reminds you of a conversation a couple of carefree neighbors would have over their backyard fence.

You wonder if they realize how hard it is to hear them talking about normal life. You’d like to tell them you don’t want to hear this conversation on the day you have been arraigned, turned in your passport, peed into a cup to prove you aren’t on drugs, been fingerprinted, and had your mug shot taken twice. But you don’t say anything.

When you are finally home, you take a good look at yourself in the mirror. You realize how much you’ve aged over the last 126 days. Your face looks tired and worn out. You realize you are one man going up against the full force, weight, and reputation of the US government, of arguably the most powerful US attorney’s office in the country. You are fighting Patrick Fitzgerald, the prosecutor who put Scooter Libby away and jailed New York Times reporter Judith Miller, and whose assistants put Governor George Ryan away. Patrick Fitzgerald, the man who, on the day your brother was arrested, announced, Lincoln would roll over in his grave if he knew that the Senate seat vacated by Barack Obama was being auctioned off to the highest bidder.

You shake your head and then ask yourself the same questions you ask every day: how the hell did this happen? When’s it gonna all end? And most important: how’s it gonna all end?

CHAPTER ONE

Brother’s Keeper

Knowledge of the investigation was widespread when Mr. Blagojevich ran for re-election in 2006, and he still won 50 percent of the vote. Some political experts thought Judy Baar Topinka, then the Republican state treasurer, was weak opposition to Mr. Blagojevich’s one-on-one charm. And Mr. Blagojevich spent $27 million, nearly three times what Ms. Topinka spent.

(New York Times, December 14, 2008)

It began with a phone call. On July 4, 2008, my brother—in the middle of his second term as governor of the fifth largest state in the United States—asked if I would come to his home to discuss something in person. Although I lived in Nashville, I was spending a portion of the summer in Chicago with my wife Julie so we could be near our twenty-five-year-old son Alex, who lived and worked in the city. I had no idea what Rod wanted to see me about, but I agreed to meet. Soon, he and I and his wife Patti were sitting in the book-lined study of his comfortable home in the Ravenswood neighborhood on Chicago’s north side.

It quickly became apparent that this was a business meeting, not a social engagement. Rod wanted my help. He was up for reelection in November 2010. If he chose to run again, he said, he had to have a meaningful campaign war chest to scare off any potential opposition within his own party. He told me he needed someone he could trust to head up his fundraising. That someone was me. Would I be willing to put my own business on hold for the latter half of 2008 and take over the reins of Friends of Blagojevich (FOB)?

Trust was the operative word. It was no secret that throughout most of his tenure, Rod and his administration had been under investigation by the Department of Justice (DOJ). Allegations were swirling that people working on Rod’s behalf during his campaign and after the election were playing fast and loose with the rules, perhaps with his knowledge and blessing.

In 2005 Rod’s father-in-law, the Chicago alderman Richard Mell, had told the media that Rod’s chief fundraiser, Chris Kelly, had traded appointments to state boards and commissions in return for $50,000 in donations to the campaign. Although Mell retracted the accusation under threat of a lawsuit, the damage was done—not just to Rod’s image on the eve of his first bid for reelection, but also to the family dynamic.

Two years later Kelly was indicted on tax fraud charges unrelated to Rod. Some said, however, that the prosecution would look favorably upon him if he provided information about the governor’s activities. I’ll relate the sad story of Chris Kelly in chapter 3.

In 2006 the DOJ had indicted another of Rod’s friends, Tony Rezko, on charges of public corruption. Rezko, a major campaign contributor