In Blagojevich Case, Haste Makes Hung Jury

By Margie Burns

Did anyone think Blagojevich was going to “auction” a Senate seat before 8:30 a.m.?

On Dec. 1, 2008, outgoing President Bush extended a courtesy in the traditional peaceful hand-off of power to incoming President Obama. In the transitional period between Obama’s election and Inauguration Day, the Bush White House issued a memorandum requesting all political appointees to submit letters of resignation.

In a little-noticed move behind the scenes, in the waning days of 2008, Bush had issued the memorandum over the signature of his Chief of Staff, Joshua B. Bolten.

The memo, which went out to all cabinet and executive agency heads, reads in full,

“To provide the President-elect maximum flexibility in assembling his Administration, and consistent with past practice, President Bush is requesting letters of resignation from all non-career appointees except Inspectors General and those individuals who hold termed positions.

“Please transmit the attached ‘Memorandum for Non-Termed Presidential Appointees’ to each non-termed Presidential Appointee in your organization.

“Please also collect letters of resignation from non-career SES and Schedule C appointees. These letters should be addressed to you and should indicate an anticipated departure date of no later than noon, January 20, 2009. A sample letter is attached.

“Non-career SES and Schedule C appointees at independent and regulatory agencies headed by termed appointees are not being asked to submit letters of resignation at this time.”

The “Social Security News” blogspot ( posted this memorandum, but it did not appear in the national news. Instead, the day after the news was published in a short article in the National Journal, the governor of Illinois, Rod Blagojevich, was arrested at dawn at his home, at the top of the 24-hour news cycle. The fanfare started with the flashy arrests of the then-governor and his chief of staff, John Harris, at their homes without an indictment but with a charging document signed by a judge over the weekend. The same day, federal prosecutors led by Patrick Fitzgerald and FBI agent Robert Grant held a nationally televised press conference at which they delivered highly charged and widely criticized comments about the defendants. As everyone knows, the splashy dawn arrests and the press conference seized the news cycle and launched global headlines.

As a result, Fitzgerald’s office did not have to field questions about whether the US attorney had in fact submitted his resignation letter.

Questioned, the press spokesman for the US Attorney’s office in Chicago, Randall Samborn, declined to say whether Fitzgerald submitted a letter of resignation. Samborn also declined to answer questions about a possible connection between the Bush White House memo and the Blagojevich arrests. He also declined to say whether the judge who signed the Sunday arrest warrants had seen the Bush White House memo.

What is certain is that if the US Attorney for the Northern District of Illinois had not obtained the arrests, cashing in the hapless Blagojevich like a poker chip, the resignation questions would have surfaced. The rightwing blogosphere had speculated feverishly about whether Obama would keep Fitzgerald as US Attorney, since at least the start of the trial of Chicago fundraiser Antoin Rezko. All signs are that that White House memo, a mark of consideration for the incoming president, had its chief effect not in producing resignations but in producing at least one obstreperous holdover. Fitzgerald had been investigating and otherwise pursuing Blagojevich since 2002, even before Blagojevich was elected to office. The memo did not deter dramatic action; instead — to use Fitzgerald’s words — “They sped up.”

Who Was In On the Auction?

Now the Blagojevich trial is over, and with a richly deserved black eye for the prosecution. On 23 out of 24 counts with which prosecutors tried to sandbag the defendants, the jury was hung and the judge declared a mistrial. Blagojevich was found guilty on one count, lying to the FBI, the Martha Stewart kind of conviction.

Could anyone believe, at this stage, that those flashy dawn arrests and raids in Chicago and North Carolina on Dec. 9, 2008, were essential?

Could any “reasonable man,” as the term is used, believe that anyone was going to sell a Senate seat before 9 that morning? Or before even going to the office?

To whom?

Not to dignify the “auction” claim more than it deserves, but an auction requires time. It requires a set ending time, pre-announced — a deadline. A bidding war requires time, because bidding is done incrementally, each bidder cognizant of other bidders; otherwise the bidding would not be competitive. The suggestion that Blagojevich was going to carry out an “auction” so early as to necessitate a dawn arrest is questionable on its face.

Back to that infamous press conference: Does any sensible person believe that FBI agents came to Blagojevich’s home at dawn to avoid waking the governor’s children?

Back to the press conference, the non-indictment charging document, and the arrests: Again, does any sensible person think Blagojevich was going to “auction” a Senate seat from his home? Before even going to work? Without help from his office?

The answer is no. This could be funny. That is, it could be funny if not for the damage done to our justice system, where courts apparently openly kowtow, in Chicago, to aggression.

Margie Burns is a Texas native who now writes from Washington, D.C. Email See her blog at

From The Progressive Populist, October 1, 2010

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