Declaring that the evidence presented at his trial was insufficient to support a conviction, lawyers representing convicted former Illinois Governor Rod Blagojevich laid out their case one final time Monday night, for the Federal Appeals Court in Chicago.
In a 33 page brief filed just before a midnight deadline, attorneys Leonard Goodman and Lauren Kaeseberg argued Blagojevich may have been hoping to "deal" for Barack Obama's soon-to-be-vacant Senate seat in the fall of 2008, but that he intended nothing illegal.
"The government does not dispute that a deal between two politicians to exchange appointments, such as the deal Blagojevich sought with President-elect Obama, has never before been prosecuted as a federal crime," the attorneys wrote. "The evidence against Blagojevich showed his proposed deal to be political -- trading the appointment of Obama's choice for the Senate for a place in the Obama Administration where he could continue his work reforming health care."
"No rational jury, properly instructed, would find that this was a corrupt deal, designed for private gain," they said.
The former governor's lawyers said the tapes played at his trial, clearly showed he was guilty only of pursuing the public interest.
"It is undisputed that Blagojevich is the first elected official in this country to be prosecuted for trying to make a political deal with another elected official involving an exchange of political appointments," they said. "Under these circumstances, the burden should not be on Blagojevich to prove his proposed deal was not criminal."
On those undercover tapes, secretly recorded on phones at Blagojevich's home and Ravenswood Avenue campaign office, the former governor was heard floating a variety of scenarios involving the Obama Senate seat. Among those, Blagojevich hoped to be appointed to a cabinet position or given assistance in obtaining a prime position at a non-profit organization. In exchange he suggested he would give the job to Obama's first choice, his friend and counselor Valerie Jarrett.
"In his private conversations, Blagojevich expressed his sincere belief that his own appointment to a post such as HHS would serve the public interest due to his unique qualifications to advocate for health care expansion as he had done in Illinois," they wrote. "Blagojevich sought nothing more than bona fide wages associated with a public service job, in exchange for the appointment of Valerie Jarrett."
Indeed, the former governor's lawyers argue that he made clear in conversations with advisors that he wanted everything to be on the up and up.
"What do you think about that concept, that idea?" he is heard asking on one tape. "How do you make a deal like that? I mean, it has to be legal, obviously, but it's very commonplace, is it not, doing things like this?"
One of the more troubling allegations against Blagojevich, was that he hoped to receive over a million dollars in campaign contributions from supporters of Congressman Jesse Jackson Jr., in exchange for appointing Jackson to the vacant Senate seat. But the former governor's lawyers argue that those allegations distort Blagojevich's true intentions.
"Blagojevich's message...was identical to the message delivered to many persons seeking a political appointment to a position such as the ambassadorship to a European country," they said. "No promises can be made, but if you show support for the president (ie., raise funds) you will be a realistic candidate for this appointment."
Once again, the former governor's lawyers argued that he was unfairly stopped from testifying that he honestly believed that what he was hoping to do was legal.
"He was also entitled to tell the jury of his honest belief that his requests for campaign donations...were lawful and proper exercises of his constitutional right to raise funds for his campaign."
While the government argued that the laws in question were crystal clear, the attorneys suggested that the opposite was actually true.
"It can hardly be said that Blagojevich's proposed political deal is clearly covered by the federal bribery and fraud statutes," they said. "The laws relating to political fundraising are equally unclear, and were described by the court in a recent case as 'not a model of clarity' and a 'murky field of federal law.'"
What's more, Blagojevich once again argued through his lawyers that had he been permitted to play more of the undercover tapes, his actions surrounding the Senate appointment would have been seen in a more favorable light. They pointed to phone calls where the former governor was heard floating the possibility of appointing Attorney General Lisa Madigan, to appease her powerful father, House Speaker Michael Madigan.
"The excluded calls do evidence Blagojevich's state of mind during the critical time," they argued, "and they refute the government's arguments to the jury that Blagojevich was lying about a Madigan deal."
Blagojevich is serving a 14 year sentence at the Federal Penitentiary in Englewood, Colorado. His lawyers will argue the case before the Seventh Circuit Court of Appeals December 13th.