About those wiretaps…
Friday, Dec 19, 2008 - Posted by Rich Miller
* Chutzpah…
An attorney representing Governor Rod Blagojevich in his criminal and impeachment proceedings says lawmakers considering impeachment proceedings should not consider material from federal wiretaps.
Attorney Edward Genson made his second appearance in front of the special Illinois House committee Thursday. He says the taped conversations have not been approved as evidence in a criminal trial.
“I have cases here that I won’t belabor you with where people have tried to talk about these things in front of grand juries, and they said they’ve said they couldn’t do it,” Genson told the 21-member panel. “Until we get a chance to contest it, until we get the underlying documents, the use of this is illegal.”
* Here’s the law…
18 USC Section 2515. Prohibition of use as evidence of intercepted wire or oral communications.
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
* And here’s what a commenter had to say about it yesterday…
Note the last clause. Here’s where he’s off kilter: If the disclosure of the tapped calls is illegal for the House committee to hear, it would also be illegal to have been submitted to the federal court as the basis for the complaint. Dumb beyond measure. He’s grabbing at straws.
Exactly.
* More…
Genson complained that the wiretaps might have been illegal, even though they were authorized by a judge. He said a number of hurdles have to be cleared before taped conversations can be used in a trial. Committee members have repeatedly pointed out they are not conducting a trial.
Genson may eventually ask a federal court to intervene and stop the House from using the wiretap evidence. Good luck with that, dude.
* Meanwhile, the impeachment committee has sent a letter to US Attorney Patrick Fitzgerald…
The letter to Fitzgerald, which was under virtual lock and key by the committee, explicitly identified about 20 current or former members of Blagojevich’s administration the panel wishes to hear from and several lobbyists, including those representing horseracing interests, sources said.
Among those named are Blagojevich adviser and lobbyist John Wyma, former chief of staff and lobbyist Alonzo Monk, ex-Deputy Gov. Robert Greenlee, Deputy Gov. Louanner Peters, former Blagojevich budget director John Filan, current budget director Ginger Ostro and Blagojevich’s most recent chief of staff, John Harris, who was arrested and charged with the governor on Dec. 9 and has since resigned, sources said.
Another name on the list is former Blagojevich personnel employee Dawn DeFraties, who was wrongly accused by the administration of allegedly manipulating the state hiring process and fired as a testament to Blagojevich’s commitment to battle corruption.
But an administrative law judge said the administration never proved its allegations against DeFraties, who said she merely was taking hiring orders from the governor’s office. A Downstate judge ultimately threw out the governor’s case against her, describing it as “bizarre” and “Kafkaesque.”
She was ordered reinstated and has acknowledged cooperating with federal investigators probing hiring fraud under Blagojevich.
- JR - Friday, Dec 19, 08 @ 10:09 am:
My question - is there even any “wiretap evidence” at this point they could use?
My thought was that, thus far, we have written pieces of conversations in 5-10 word chunks, and characterizations of conversations.
Does the House plan to actually listen to the recordings? Have those been released yet?
Should the House even bother to go down this road? It seems like a waste of time and argument. I mean , Gensen will probably just tear into the committee saying they don’t know what is on the tapes for sure.
For all we know, but highly highly unlikely, Rod’s next sentence could have been “I’m just kidding!” in all those tapes…
I’m really not thinking about the Gov here - they have enough other stuff on him. I am just thinking down the road how loose this standard could be for someone else.
- VanillaMan - Friday, Dec 19, 08 @ 10:10 am:
After a few days of listening and watching the Impeachment Committee, I see nothing Gerson is doing to halt their mission. Gerson doesn’t have a legal justification for his continued claims of due process.
Just as he could have lost the 2006 election by one vote and couldn’t appeal to the courts claiming due process, Blagojevich is encountering a political process where terms such as “convicted” and “trial” are used, but does not use judicial standards.
As it should be. We are not discussing a legal issue. We are discussing the political ability to “fire” this governor. Gerson doesn’t get it.
- Rich Miller - Friday, Dec 19, 08 @ 10:13 am:
VM, it’s Genson, with an “n.”
- wordslinger - Friday, Dec 19, 08 @ 10:22 am:
It seems to me that Genson is hanging his hat on a part of the code governing evidence gathered from “illegal” wiretaps or bugs, i.e. those not authorized by a judge.
For example, back in the 60s, the FBI illegally planted bugs in a Michigan Avenue tailors shop and a Forest Park restaurant where Outfit guys hung out. They gathered intelligence from the taps, but knew full well going in that they’d never be able to use any of it in court.
Genson, of course, will try mightily to suppress the wiretap evidence, but good luck getting a judge to overturn the approval of another judge.
As far as that witness list, I suspect the testimony from most them could be wrapped up in 15 minutes, or as long as it takes them to give their name, address, and say “under the advice of counsel, I respectfully decline to answer and invoke my 5th Amendment right…”
- He Makes Ryan Look Like a Saint - Friday, Dec 19, 08 @ 10:27 am:
This is Genson’s only lifeline. If he doesn’t get the taps thrown out, Blago will be a cooked goose. He is hoping he can scare the committee into thinking they are doing something wrong, and it doesn’t appear to be working.
The feds have been in the wiretap business for decades and I am pretty sure they know what they need to make them legal.
- Cassandra - Friday, Dec 19, 08 @ 10:29 am:
So, do Wyma, Peters, Monk, Ostro et al now have to go out and hire lawyers too? I believe that Mrs. Blago and Blago’s brother already are doing so.
Those close ties to our Blago, even if pure, could prove to be expensive…like six-figure expensive. I’ve heard of Clinton admin figures who were completely innocent and comparatively low-echelon who nevertheless ended up paying $100k or more in legal fees to cover themselves.
Christmas is looking better for quite a few members of the legal profession.
- Marco - Friday, Dec 19, 08 @ 10:49 am:
Genson hasn’t been very clear with his position, but I think it boils down to this: the constitutional validity of the wiretaps has not been assessed in a CONTESTED proceeding in federal court, such as in a motion to suppress evidence, only ex parte before the judge who issued the warrant. So, I think what he’s alleging — in a rather inartful way — is that the committee shouldn’t rely on materials, even in a political process, the legality of which have never been completely validated. Viewed in this way, it’s not an issue of due process; it’s an issue of what’s “fair” or “appropriate” for the committee to consider. In the absence of clear and established guidelines, I think that’s the argument that he’s trying to make.
- MikeintheSuburbs - Friday, Dec 19, 08 @ 11:44 am:
You are correct Marco. The mere fact that the USAttorney used the quotatons from the wiretaps in his complaint means nothing. If it were to be determined in a subsequent hearing in the federal district court that the wiretaps did not comport with the requirments of the federal statute, the State would have been wrong to have used them in the first place. I’m not sure what the remedy would be for this, however, if the impeachment has already occured and relied, even in part, on those taped statements. They have already done so in the opening remarks so any final decision would have to state that the tapes played no part in the decision, (as if anyone would believe that)and even that could be problematic. If they are smart, they won’t go there any further.
- Been There Before - Friday, Dec 19, 08 @ 1:04 pm:
This is all a smoke screen. The provision (18 USC 2515) cited by Genson is specifically about ILLGEGAL, non-court authorized, intercepts of oral communications as noted in the post. These were court authorized intercepts under the federal wire tape law (known as Title III). In the context of the criminal trial, Genson will eventually get full disclosure of the tapes and the opportunity to second guess the Judge in issuing the warrant (Title III order) to wiretap the Governor. There will be a lot of procedural and process issues raised, but it is unlikely that the actual contents of the tapes will be challenges as an inaccurate recording of the Governor’s own words.
As to the issue raised by Genson and in this post, a more relevant provision of the Title III chapter is “§ 2517- Authorization for disclosure and use of intercepted wire, oral, or electronic communications” which provides in relevant part:
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
(3) Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.
Now, that gets us to the point that the actual tapes and their content COULD BE disclosed to the investigative panel of the General Assembly. (VERY unlikely that USAO/Fitzgerald would do that because it would preview his case, among other things, and it would also create problems on the notice and procedural provisions etc of the Title III statute). In any event, the impeachment hearing panel really does not need the actual tapes for their purposes, IMHO.
PLEASE remember, as oft stated here, this is a POLITICAL proceeding of the STATE. It is not a federal (or state) criminal prosecution. There are due process considerations, but in this context, the General Assembly determines what process is due. Clearly, they will want to be fair in their process so that the proceedings will be perceived as having political legitimacy.
The Impeachment panel now has before it a sworn statement (affidavit) of an FBI agent who has listened to the tapes and properly disclosed some of their contents for purposes of establishing probable cause to arrest Governor Blagojevich in the Federal Criminal Courts.
Obviously, based on the sworn affidavit, you don’t have the best evidence (the recordings themselves) or the full context, but you don’t need that in the context of this political, impeachment inquiry. They can use what they want and decide for themselves if it is sufficient from a reliability and fairness perspective, among others, to serve as a recommended basis for an article of impeachment (recall, the House will draw up charges and the Senate would determine, at a legislative “trial,” if the charges are supported and sufficient to warrant the Governor’s removal from office).
The hearsay and other arguments are also non-sense. First, this is not a criminal trial where hearsay prohibitions apply. Second, even in the criminal context, there are exceptions to the hearsay rule (recall the legislature itself redefining what is considered allowable hearsay this last legislative session ala the Peterson investigation). Moreover, in the criminal court context, statements of the DEFENDANT (aka Blago) are, by definition in the Federal Rules of Evidence, NOT hearsay . I repeat, even in a criminal trial, which this is not, a defendant’s own statements are NOT HEARSAY.
Basically the issues for the panel as to whether to recommend charges (an article of impeachment) based on the criminal complaint and sworn affidavit relate to questions of fairness and authentication/reliability. As to the former, the legislators will determine that. Again, they determine what process is due in the context of this political proceeding. As to the latter, these are really non-issues that are procedural in nature that relate to laying the foundation for the admission of a defendant’s statements in a criminal trial. At best for Genson, it is a question of whether the panel should accept as accurate the recounting of the Governor’s statements from the tapes by the FBI Agent in his sworn affidavit, knowing as well that they do not have the full conversation and context.
Hope that helps.
- Been There Before - Friday, Dec 19, 08 @ 1:50 pm:
As to the suppression issues in the federal criminal courts. While the challenge as to whether the wiretap order was proper has not yet been litigated, let’s presume it has and a court says the tapes should be suppressed. THey would be suppressed for PURPOSES OF THE CRIMINAL TRIAL where the defendant’s life and liberty ae at stake. The suppression of evidence in a criminal trial is done as a mechanism to protect a crminal defendant where life and liberty is at stake and punish the government when the constable blunders (the purpose being to discourage police/prosecutor misconduct). Just because the tapes are suppressed for procedural or process violations in the federal criminal courts, does not diminish their accuracy, nor would a suppression order mean that the tapes/contents could not be used in another context, such as an impeachment trial.
- Jay SeaBee - Friday, Dec 19, 08 @ 5:25 pm:
I hope they dig into the DeFraties case. While she admitted to “simply following orders” from the governor’s office, she did do what she was accused of: altering grades and circumventing the hiring process to favor certain candidates. The state simply prosecuted its case in the wrong way. They stopped their prosecution at the point DeFraties and Casey were about to name exactly who in the governor’s office gave them their marching orders.