Federal prosecutor Fitzgerald wants more time to indict Illinois Democrat Governor Blagojevich. It is not clear to me why this should be allowed outside of extraordinary circumstances. I have been very critical of Fitzgerald’s behavior in the Libby prosecution and in this case with Blagojevich in a previous post titled “As Prosecutor Fitzgerald Pursues Blagojevich, Who Watches Fitzgerald?” (link).The Chicago Tribune reported (link) the following on December 31:
The U.S. attorney's office today asked a federal judge for an extra three months to formally indict Gov. Rod Blagojevich and his former chief of staff. The move by U.S. Atty. Patrick Fitzgerald's office was expected because the deadline for handing up an indictment had been set for Jan. 7. The extension would give prosecutors until April 7…. Blagojevich was charged in a criminal complaint, not an indictment.
Fitzgerald's office cited the complexity of the case as one of the main reasons for seeking the three-month extension…. In seeking the extension, which Blagojevich's defense attorneys are not opposing, prosecutors said they have intercepted "thousands of phone calls" by tapping Blagojevich's home phone between late October and early December. They also said "multiple witnesses have come forward in recent weeks to discuss their knowledge of criminal activity" connected to the case…. They also noted that federal grand juries are not seated during the holidays and said there were other reasons they need the delay, but did not disclose them publicly.
I have looked at a number of sites featuring commentary by attorneys (e.g.: Instapundit; Volokh Conspiracy; Althouse; Legal Insurrection) and have found nothing yet on this development.On Dec. 9, when FBI agents arrested Blagojevich … Fitzgerald said investigators moved quickly to stop a crime spree in progress and noted agents were fanning out to continue probing the allegations.
A hearing on the extension request is expected to be held Monday [January 5].
We know that Fitzgerald has had Gov. Blagojevich under scrutiny for years for a number of issues. Obama’s election and the incipient vacancy of his Senate seat that would be Blagojevich’s to fill led to the now-famous taped discussions between Blagojevich and others. I have read speculation that Fitzgerald moved suddenly to bring the criminal complaint last month because he feared that Obama and his people would get caught on tape negotiating with Blagojevich about whom Blagojevich would appoint to Obama’s Senate seat. This theory could explain why Fitzgerald needs yet more time to interview new witnesses and to gather additional material --he does not yet have a slam dunk case against Blagojevich and would not have brought the criminal complaint when he did but for Obama's election and the resulting flurry of conversation it created over the Senate seat.
It seems patently unfair for a prosecutor to announce a criminal complaint and arrest an elected official with great fanfare and then say a full 30 days later that he needs more time to build his case. The rule must be that a prosecutor should only bring a criminal complaint unless he already has a strong enough case that he believes should prevail at trial.
UPDATE 1/3/09: Law Professor William A. Jacobson addresses this issue in a post at his weblog Legal Insurrection (link).
John M Greco
