Blagojevich claims conversation record 'missing'

[February 08, 2011]  CHICAGO (AP) -- Attorneys for Rod Blagojevich filed a pretrial motion Tuesday seeking what they claimed was missing evidence in the impeached Illinois governor's corruption trial, including records of a phone call between a Blagojevich aide and then-White House chief of staff Rahm Emanuel.

The motion claims the telephone conversation took place just a day before Blagojevich's December 2008 arrest on charges that include allegations he sought to sell or trade the appointment to President Barack Obama's vacated Senate seat for personal gain. The motion says details of that conversation could bolster a defense contention that Emanuel, who has not been accused of any wrongdoing, was willing to help with a political deal in which Blagojevich would have named Illinois' attorney general to the seat.

But the call between Emanuel and then-Blagojevich chief of staff John Harris is not among hundreds of transcripts of secret FBI wiretaps recorded before Blagojevich's arrest. The defense motion points only to circumstantial evidence that it even happened, including a reference in a White House transition-team report from after the arrest that said Emanuel had "about four" conversations with Harris. The defense was given records of only three conversations, according to the motion.

"The fourth and final phone call is the call that is mysteriously missing," it adds. "Piecing together multiple documents after the first trial, Blagojevich uncovered the fact that the December 8th phone call ... took place."

A message seeking comment left on a voicemail overnight at the U.S. attorney's office wasn't immediately returned.

Blagojevich faces 23 charges at his April retrial, after jurors at his first trial last year agreed only on one of 24 counts and convicted him of lying to the FBI. Both prosecutors and defense attorneys have been ordered to file all pretrial motions by next week.

The defense's latest filing comes just two weeks before Chicago's mayoral election. Emanuel has a considerable fundraising advantage and leads in polls in the race to replace retiring Mayor Richard Daley.

Emanuel has said little about the Blagojevich case publicly, often citing the ongoing legal proceedings for not commenting in detail. The White House report released in 2008 by the then-president-elect's office concluded neither Emanuel nor anyone else on Obama's staff had had any "inappropriate discussions" with Blagojevich or his aides.

It found that Emanuel had had "one or two telephone calls" with Blagojevich and "about four" with Harris, who testified for the government at Blagojevich's first trial.

Tuesday's motion also goes out of its way to say the defense isn't accusing Emanuel of doing anything untoward.

"Blagojevich makes absolutely no assertion that Rahm Emanuel was ever involved in, or aware of, any wrongdoing, criminal or otherwise," it says.

Still, the motion's focus suggests the ousted governor's attorneys could make Emanuel a part of their defense strategy, which could cause him some political discomfort. He did not testify at the first trial, though both prosecutors and the defense have left open the possibility he could be called at the second trial.

A voice message left overnight for Emanuel campaign spokesman Ben Labolt was not immediately returned.

In their motion, defense attorneys contend details of a final conversation they say took place between Emanuel and Harris would support Blagojevich's claim that he merely hoped to forge a deal in which he would name Illinois Attorney General Lisa Madigan to the Senate seat in exchange for her father, powerful Illinois House Speaker Michael Madigan, pushing a legislative package favored by the governor.

Prosecutors have portrayed the supposed Madigan deal as a red herring designed to obscure multiple bids by Blagojevich to effectively sell the seat not for the benefit of his Illinois constituents, but for his own personal gain.

About half of the pages in Tuesday's defense motion are blacked out, including names and excerpts from wiretap recording transcripts that federal Judge James Zagel has ruled aren't pertinent to the case and should remain under seal.

[Associated Press; By MICHAEL TARM]

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