Laywers for Rod Blagojevich Tuesday said they would petition the Supreme Court if the court of appeals does not rule in their favor on extending the trial date.
Blagojevich's attorneys had argued that the so called "honest services" statute under which Blagojevich was charged, would almost certainly be declared unconstitutional by the Supreme Court within the next month. They contended in court filings that they could not begin the Blagojevich trial on its scheduled start date of June 3rd, with the possibility looming that half of the charges might be thrown out.
"We feel the governor is absolutely innocent," defense lawyer Sheldon Sorosky declared outside the courtroom Tuesday. "It would be improper to begin a trial charging anyone with an offense which might very well be declared unconstitutional two to three weeks into that very trial!"
Judge James Zagel had repeatedly refused to delay the proceedings, so they had taken their case to the appellate court. But that court ruled they did not even have jurisdiction. In saying that, however, they added a caveat that their answer no matter what, would have been "no".
"If the charges for deprivation of honest services had been the only pending counts, the denial of the request to continue the trial pending the Supreme Court's resolution of the case pending before it might give us pause," the ruling stated (.pdf). "However, the defendants face additional charges. In addition, the defendants cannot demonstrate that the challenged orders are effectively unreviewable at the end of the case."
It was essentially the same argument prosecutors had made: that the "Honest Services" statute might be overturned, but Blagojevich faces other charges which would be left intact. The judge had echoed that sentiment, saying that what matters is which law he needs to use to instruct the jury at the end of the actual trial. If the Honest Services law is thrown out, he said, he simply would not mention it to the jury.
"Well the answer to that is very simple," said defense attorney Sam Adam. "If that's the government's position, then go ahead and dismiss the honest services counts, and we'll go to trial on what's left!"
Blagojevich would appear to have only one recourse, and his lawyers promised to use that option.
Outside of court, Adam vowed that if the appellate court ruled against the former governor, "We'll go to the Supreme Court on it!"
That would mean the Supreme Court would be asked to rule on a delay, stemming from anticipation of a ruling they have yet to deliver.
Of course, all of this could be moot, if the High Court rules on the Honest Services statute within the next three weeks, prior to the scheduled start of the Blagojevich trial.