Fact-checking Blago, Day 2

NEW YORK–Blago continues to misstate the law. He’s a lawyer. He should know better.

Illinois Senate Impeachment trial of Gov. Rod Blagojevich

Blago has steadfastly refused to answer specific questions from Larry King, CBS’s Maggie Rodriguez and others, including Jami Floyd today on In Session (is that you on the tapes? Did you say that? If it’s out of context, what was the context?) on the grounds that he is legally barred from commenting on a pending legal matter. No. Incorrect.

Illinois Rules of Professional Conduct 3.6 bar attorneys in pending litigations from making certain extrajudicial comments. They do not bar defendants from speaking out in their own cases. Defendants, parties, and witnesses are always free to speak, under the First Amendment, unless there is a gag order in effect. There is no gag order in this case. I have also read the Senate impeachment rules in their entirety, and nothing therein bars Blago from speaking publicly about the allegations against him.

Blago also maintains that “we” felt it was more advisable to do a media tour rather than assert his legal rights in the Senate hearing. As Mark Twain said, "Only kings, presidents, editors, and people with tapeworms have the right to use the editorial 'we'." Blago is trying to sweep his lawyers into his defensive view that appearing at the hearing would be futile.

Yet his attorney, Ed Gensen, would surely like nothing more than a high profile fight for Blago’s constitutional rights played out before the Illinois Senate. A claim under the Illinois and federal constitutions that the limits on witnesses violate Blago’s due process rights would be highly likely to prevail, in my view. The Seventh Circuit Court of Appeals, which governs Illinois, has so ruled in a similar case in 2004. This is the type of juicy claim any criminal defense attorney would enjoy asserting.

Gensen has publicly given one reason for withdrawing from Blago representation: because Blago is not listening to his advice. He must be stewing over Blago’s continued suggestions that Gensen condones this media tour and his failure to appear before the Senate. In fact, it may be the sole reason why he resigned.

Blago knows his attorney can’t say more publicly without violating attorney-client confidentiality. It’s a perfect media strategy: claim the lawyer, who can’t publicly contradict him, is advising him to behave this way.

What is clear is that Blago stands alone in asserting that it is better for him to boycott a proceeding where his job is in real jeopardy and appear instead on television (where he then doesn’t answer any specific questions about whether he’s corrupt).

If he really had answers to the corruption allegations, wouldn’t a media tour be the time to offer them?

–Lisa Bloom, In Session anchor