Governor's arrest puts prosecutor on the spot

Scott Turow

is writing a sequel to his novel "Presumed Innocent"

Here in Chicago, where we are accustomed to news that challenges the thresholds of belief, we awoke Tuesday to find that our governor, Rod Blagojevich, had become the second Illinois chief executive in a row to be subjected to criminal charges.

The 76-page criminal complaint implies that Blagojevich was such an inveterate schemer that despite being the obvious target of a three-year federal grand jury investigation into trading state jobs and contracts for campaign contributions, he had to be taken out of his house in handcuffs to prevent him from selling off the Senate seat vacated by President-elect Barack Obama.

Even by Chicago's picaresque standards, Tuesday's developments are mind-boggling, even more so to a former federal prosecutor like me with an understanding of some of the nuances of the federal criminal-justice system. The most worrisome element is that Blagojevich's shameless behavior seems to have put Chicago's U.S. attorney, the estimable Patrick Fitzgerald, in the unenviable position of having to bring a case before he was ready.

Fitzgerald has lived by the Machiavellian motto that if you shoot at the king, you had better kill the king. Fitzgerald's highest-profile prosecutions - like those of I. Lewis Libby, the former chief of staff to Vice President Cheney, and of Blagojevich's predecessor as governor, George Ryan - have been assembled methodically, with an almost obsessive desire to tie down evidentiary details before charges are returned.

Furthermore, Fitzgerald has a history of trying not to use the justice system to preempt the operation of other democratic institutions. Thus, despite a more than five-year investigation, the Ryan indictment was withheld until after the governor left office in 2003, and Fitzgerald did not oppose a defense request to schedule Libby's perjury and obstruction-of-justice trial until after the 2006 midterm elections.

Undoubtedly one of the events Fitzgerald has no desire to influence is his own possible reappointment as U.S. attorney for four more years (all U.S. attorneys can be replaced by the incoming administration). Fitzgerald's effectiveness as a prosecutor is unquestioned, and the state's senior senator, the Democrat Dick Durbin, has said Fitzgerald can stay in the job if he wants to.

But the Justice Department may have other thoughts. Fitzgerald has held the job since October 2001, some may argue that a position with such extraordinary discretionary powers should not lay in the same hands for 12 years.

Moreover, Fitzgerald's bare-knuckle methods have rankled many in the Chicago bar. For example, he got George Ryan's chief of staff, Scott Fawell, to testify against his former boss by threatening to imprison Fawell's girlfriend for perjury.

In his news conference Tuesday, Fitzgerald indicated that he hadn't planned to indict Blagojevich until next spring, meaning that the prosecutor was going to wait until his own fate was decided. Instead, with wiretap evidence piling up that showed that Blagojevich was intent on selling the Obama seat in exchange for a substantial personal benefit, like a high-paying job for himself or his wife, Fitzgerald was forced to make the arrest. He decided that he could not even wait for the grand jury investigating Blagojevich to meet on Thursday and indict him.

Bypassing the grand jury and proceeding through a criminal complaint instead effectively puts the case against Blagojevich on the express route. Fitzgerald will now have only 20 days to either give the governor a preliminary hearing - which would amount to free discovery for his defense attorney - or return an indictment. Given Fitzgerald's frank appeal for information from the public at his news conference, it's obvious that his case is not fully buttoned up, and that Blagojevich forced the prosecutor's hand.

All of this news comes with personal chagrin for me because I was Blagojevich's first appointment to the Illinois Executive Ethics Commission, a body created his first year in office. (For the record, I have never made a campaign donation to him.) The commission judges ethics complaints against state officials, supervises ethics instruction, and tries to carry out an overall mandate to improve the ethical climate in Illinois.

Ethics reform in Illinois is often regarded as an oxymoron, and I concede that the commission's arduous efforts to strengthen our ethics laws have met with little success. Speaking solely for myself, I hope the governor's arrest galvanizes public outrage and at last speeds reform.

One change that is obviously indispensable is overhauling the campaign-contribution laws in Illinois, where there are literally no limits on political donations - neither how big they can be or who can give them. The lone exception is a law, passed over a Blagojevich veto, that takes effect Jan. 1, prohibiting large state contractors from donating to the executive officer who gave them the business. Otherwise, anybody - union officials, regulated industries, corporations, lobbyists - can throw as much money as he likes at Illinois politicians.

This astonishing state of affairs persists 32 years after the Supreme Court, in

Buckley v. Valeo

, recognized "the actuality and appearance of corruption resulting from large individual financial contributions" in approving limits on such donations to candidates for federal office. One can only hope that even in Illinois, we are too ashamed now to tolerate business as usual.