How will new interpretation of bribery law affect case against ex-Illinois House speaker?

Attorneys on both sides of the federal corruption case against former Illinois House Speaker Michael Madigan didn’t agree on much this past month, but they are aligned on one thing: they’re prepared to go to trial on Oct. 8 in Chicago.

The agreement to keep the already-delayed trial date in place kicked off a month otherwise full of arguing over how the case should proceed, especially after the U.S. Supreme Court in late June narrowed the scope of a key federal bribery statute central to the case.

Madigan’s original trial date was moved from April to October in anticipation of the high court’s decision in Snyder v. United States. After months of waiting, the court handed down its ruling on June 26, finding the federal bribery statute – referred to as “Section 666” – does not criminalize “gratuities” given to a state or local public official after he or she has already performed an official act.

The decision set off weeks of legal jockeying in three separate cases in which prosecutors allege electric utility Commonwealth Edison and telecommunications giant AT&T Illinois gave jobs and contracts to Madigan allies in exchange for favorable legislation in Springfield.

But while defense attorneys for Madigan and his confederates facing related corruption charges argued the high court’s ruling should mean the dismissal of charges or acquittal of convictions, prosecutors have maintained the decision has no bearing on the cases.

“This dog will not hunt,” prosecutors this week wrote in a filing responding to Madigan’s motion to dismiss the majority of the indictment against him, bolstered by the high court’s ruling.

That sentiment followed the feds’ notice to U.S. District Judge John Blakey last month that they had no intention of either dropping or altering the bribery charges against Madigan in light of the Supreme Court’s decision.

Prosecutors already won unanimous convictions in the case of the so-called “ComEd Four” last spring, but their sentencings were delayed indefinitely while waiting for the Supreme Court’s ruling. The court’s ruling spurred new activity in that case as well, with defense attorneys asking for a new trial given the new interpretation of the bribery law.

And next month, former AT&T president Paul La Schiazza is scheduled for his own trial in the lead-up to Madigan’s, accused of similar bribery charges that were brought against the ComEd Four.

Quid pro quo?

Common to all three cases is the feds’ narrative that longtime influential lobbyist Mike McClain acted as an emissary between Madigan and the two utilities in order to secure jobs and contracts for the speaker’s allies.

In addition to his conviction as part of the “ComEd Four,” McClain will also stand trial with Madigan in October as his co-conspirator in what the feds have dubbed the “Madigan Enterprise,” an allegedly criminal shadow structure through which the former speaker amassed power. The “enterprise” included Madigan’s positions as the longest-serving legislative leader in the U.S., chair of the state’s Democratic Party, local Democratic committeeman in Chicago and as partner in his real estate law firm.

McClain, whose friendship with Madigan stretches back to the 1970s when they were young legislators in the Illinois House, was ComEd’s leading contract lobbyist for decades. Prosecutors alleged McClain’s actions on the speaker’s behalf greased the wheels for passage of several major bills benefitting the companies.

But defense attorneys for McClain, his ComEd co-defendants, La Schiazza and Madigan himself all argue that legislators – even the powerful speaker – are often asked to help connect people with jobs in the normal course of business.

“These kinds of requests are commonplace, and they persist to this day,” La Schiazza’s attorneys wrote in a filing last month. “Moreover, it is not unlawful for a constituent to generally seek to generate goodwill.”

During the ComEd trial, defense attorneys argued the utility was simply engaging in legal – and effective – lobbying, and the company even made significant concessions throughout the extensive negotiating process. They also leaned on evidence that ComEd ignored several of McClain’s requests to hire people with connections to Madigan.

Under that theory, the jobs and contracts that did materialize for Madigan allies should be classified as “gratuities,” because defense attorneys argue there was never an explicit quid pro quo agreement. And as gratuities, they’re no longer covered under the federal bribery statute after the Supreme Court’s decision in the Snyder case.

“These counts were gratuities, and any suggestion to the contrary is hogwash,” Madigan’s attorneys wrote in a filing last month. “Their dismissal in light of Snyder is required.”

Prosecutors, however, argue they’ll have no trouble proving an implicit quid pro quo existed under a legal theory known as “stream of benefits,” wherein a pattern of corrupt exchanges over a long period of time is proof enough of a quid pro quo, even if there’s no smoking gun evidence of a handshake deal.

“The allegations of the indictment demonstrate that ComEd’s efforts to bribe Madigan in exchange for his official action were in fact successful; after ComEd started showering Madigan with valuable benefits, ComEd’s legislation began to move,” prosecutors wrote in a filing this week. “Indeed, the fact that ComEd continued the payments for years strongly suggests they were satisfied with the agreement they had struck with Madigan.”

Government lawyers also pointed to an alleged deal between Madigan and former Chicago Ald. Danny Solis in which the speaker agreed help the alderman get appointed to a lucrative state board position in exchange for steering clients to the speaker’s property tax law firm.

But Solis ended up being a government mole, spending several years as a cooperating witness secretly recording conversations and is expected to testify at Madigan’s trial.

In one such recording in 2017, Solis and Madigan were discussing an apartment project in the alderman’s ward. The feds allege the developer understood that Solis – in his capacity as chair of the City Council’s zoning committee – would receive approvals for the project contingent on hiring Madigan’s law firm.

“I think they understand how this works, you know, the quid pro quo,” Solis allegedly told Madigan, to which he replied, “Okay…Very good.”

But as the pair prepped for a meeting with the developer the following month, Madigan allegedly advised Solis to not use the phrase “quid pro quo,” instead encouraging the alderman to develop a false pretext on how to gently sell his legal services.

“You’re just recommending…because if they don’t get a good result on their real estate taxes, the whole project will be in trouble…So you want high quality representation,” Madigan allegedly coached Solis.

Prosecutors this week also hit back at La Schiazza’s demand that his bribery charges be dropped in light of the Snyder ruling, arguing the federal bribery statute still “does not require a meeting of the minds between the bribe payor or bribe payee; at trial, the government is only required prove that defendant intended to engage in a quid pro quo.”

The feds say they’ll have no trouble proving that through evidence of “extensive internal discussions about ensuring that AT&T would receive “credit” from Madigan in exchange for agreeing to his request” to put an ally of the speaker on a lucrative contract for which he performed little to no work.

In the case of the already convicted ComEd Four, defense attorneys argued in a hearing last month that their clients deserve a new trial in light of the Snyder decision. Prosecutors disagreed, in part because the defendants were also convicted on counts unrelated to Section 666, according to reporting from the Chicago Sun-Times . However, the ComEd jury was told it was not required to specifically prove a quid pro quo existed.

At that same hearing, U.S. District Judge Manish Shah laid out a filing schedule that will leave the ComEd defendants in limbo until at least mid-November, nearly four years since they were indicted.

Other pre-trial decisions

Judge Blakey, who will preside over Madigan’s trial, is also considering whether to honor a last-minute request from McClain’s attorneys that their client’s case be severed from Madigan’s.

In a filing last month, McClain’s legal team revealed it believes Madigan may seek to throw the former speaker’s longtime confidant under the bus. While the former speaker’s alleged defense strategy was redacted from the document, McClain’s attorneys said Madigan’s lawyers will act as “second prosecutors,” unfairly forcing McClain to not only defend himself from the government charges but also his co-defendant’s accusations.

“Therefore, Mr. McClain will be in effect prosecuted by ambush by a team of prosecutors who will be able to spring otherwise undisclosed testimony, witnesses, and exhibits against him throughout the trial,” McClain’s attorneys wrote.

During the ComEd trial, McClain’s defense team occasionally leaned into the idea that the lobbyist sometimes acted without Madigan’s knowledge in an effort to maintain the mystique that he was both a gatekeeper and dealmaker for the powerful speaker.

Blakey has still more decisions to make before Madigan’s trial gets underway, including whether to allow two former Chicago aldermen to testify.

Former Ald. Dick Simpson, who served in the Chicago City Council for most of the 1970s, is a longtime political science professor who has written extensively and advocated for what he sees as “good government” policies. Prosecutors want to use his testimony to educate the jury on the history of the political patronage system in which Madigan grew up under legendary Chicago Mayor Richard J. Daley.

Simpson was barred from giving similar testimony in the ComEd trial after the judge agreed with the defense that it would be prejudicial. McClain attorney Patrick Cotter made the same argument last month, telling Blakey that Simpson is a longtime Madigan critic and that his testimony would be irrelevant and only confuse the jury.

“He is gonna come in here and talk about Hinky Dink and the Daleys and the jury’s gonna think that’s what this case is all about,” Cotter said, according to reporting from the Chicago Tribune, referring to the Daley political dynasty and powerful early 20th century Chicago Ald. Michael “Hinky Dink” Kenna. “And it’s not.”

Defense attorneys also want to stop a more recent city council retiree, Ald. Michele Smith, from testifying. Prosecutors indicated they want to use Smith to establish a basic working knowledge of the politics and practices within City Hall.

Decisions on whether they can testify will come at a later date.

Blakey will also have to decide on whether to allow Madigan’s attorneys to hire a third-party firm to examine potential jurors’ social media profiles to flag biases. In a filing last month, the former speaker’s legal team noted an unnamed firm has done similar research for two recent cases in Chicago federal court and has been hired for cases in other jurisdictions across the country.

But prosecutors maintain that might backfire, writing in a filing that potential jurors’ knowledge that attorneys are looking at them through a microscope may prompt them to do their own research on the case, thus ruining their utility as a blank slate.

But Blakey has agreed to keep the identity of jurors anonymous throughout Madigan’s trial due to the high-profile nature of the defendant. Judges made similar calls in both the initial corruption trial of ex-Gov. Rod Blagojevich that ended in a hung jury and the re-trial that resulted in Blagojevich’s conviction and 14-year prison sentence.

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