* Jon Seidel…

Former Illinois House Speaker Michael J. Madigan asked a federal judge Tuesday to toss secret recordings made by investigators and dismiss part of the bombshell racketeering indictment the feds spent years building against him. […]

They also offer new context to a secretly recorded August 2014 meeting between Madigan, then-Ald. Danny Solis, a hotel developer and a secret government informant. The Chicago Sun-Times exposed details of that recorded meeting in January 2019 in a report that first revealed the feds’ interest in the powerful Southwest Side Democrat.

Though Madigan did not appear to cross any legal lines in that meeting, Madigan’s attorneys painted it Tuesday as the starting point of the feds’ lengthy pursuit of Madigan — and wrongly so, they say.

They said the feds submitted an application the next month to the city’s chief federal judge. It allegedly theorized that Madigan and Solis had conspired to withhold Solis’ approval of a zoning change unless the developer hired Madigan’s law firm.

Madigan’s firm was not hired by the developer.

There’s lots more, so go read the rest.

* From the motion to suppress…

The government theorized that Madigan conspired with [Ald. Danny Solis] to threaten to withhold [Ald. Solis]’s approval of a zoning request unless the developer hired Madigan’s law firm. A full and fair review of the audio and video recording of the meeting, as well as analysis of the surrounding circumstances, demonstrates that the government’s inferences were not objectively reasonable. In fact, they were purposefully false.

The falsity of the government’s inferences and ultimate conclusion cannot be in dispute. The government confronted [Ald. Solis] almost two years later, on June 1, 2016. He decided to cooperate with the government, and on June 3, 2016, the government debriefed him about the August 18, 2014 meeting. [Ald. Solis] explained that the government’s theories were erroneous. [Ald. Solis] told the government that he asked the developer and CS to meet with Madigan and did so because he felt bad about an unrelated situation and “wanted [CS] to be successful in the attempt to get the hotel built,” knowing that the developer had been unsuccessful on two prior occasions. [Ald. Solis] informed agents that a “side meeting” with Madigan that day (which was not captured by the CS’s recording device) did not include any discussion about a zoning change or frankly anything that would support the government’s extortion theory. Further, [Ald. Solis] made clear that Madigan had never offered Alderman A anything for introducing him to developers. In short, various inferences advanced in the September 26, 2014 affidavit were flat wrong.

The falsity of the government’s inferences and ultimate conclusion cannot be in dispute. The government confronted [Ald. Solis] almost two years later, on June 1, 2016. He decided to cooperate with the government, and on June 3, 2016, the government debriefed him about the August 18, 2014 meeting. [Ald. Solis] explained that the government’s theories were erroneous. [Ald. Solis] told the government that he asked the developer and CS to meet with Madigan and did so because he felt bad about an unrelated situation and “wanted [CS] to be successful in the attempt to get the hotel built,” knowing that the develope r had been unsuccessful on two prior occasions. [Ald. Solis] informed agents that a “side meeting” with Madigan that day (which was not captured by the CS’s recording device) did not include any discussion about a zoning change or frankly anything that would support the government’s extortion theory. Further, [Ald. Solis] made clear that Madigan had never offered [Ald. Solis] anything for introducing him to developers. In short, various inferences advanced in the September 26, 2014 affidavit were flat wrong.

Four days later, on June 7, 2016, the government nonetheless submitted a Title III application directed at Madigan, mentioning nothing about the critical, exculpatory information that [Ald. Solis] provided on June 3, 2016. The government’s own cooperator ([Ald. Solis]) essentially explained that their theory about what happened in August 2014 was factually wrong, and the government failed to disclose that to the Chief Judge. The information from [Ald. Solis] did not just undercut any conspiracy to commit extortion theory against Madigan but demonstrated that the inferences presented in the original Title III application were objectively unreasonable.

Not until 674 days later, on April 6, 2018, after submitting numerous other Title III applications did the government finally tell the Acting Chief Judge about at least some of the exculpatory information offered by [Ald. Solis]. In doing so, the government buried its admission in the middle of a footnote and offered its spin that even though the government’s interpretation of what happened in August 2014 was factually wrong, it was still somehow permissible for the government to rely upon the August 2014 incident because the now-cooperating [Ald. Solis] “acknowledged” how “an independent observer” could have misinterpreted the events.

The inclusion of the footnote and the so-called acknowledgment by [Ald. Solis] followed a remarkable two days of pressing [Ald. Solis] about the August 2014 meeting. More specifically, on April 3, 2018, the government met with [Ald. Solis], who, according to the report, told the government at the start of the interview:

[Ald. Solis] stated that [the developer] was in the process of building a hotel in the 25th Ward of Chicago that would be a “big deal” for the ward. [Ald. Solis] stated [the developer] would have received any zoning changes [the developer] required to get the hotel built, regardless of [the developer’s] decision to enter into an agreement with Madigan’s law firm.

[…] In short, after two days of being pressed and despite desperately seeking cooperation credit, [Ald. Solis] told the government that its view of what took place in that August 18, 2014 meeting was factually wrong.

Needless to say, the August 2014 event involving CS was not charged in the original or superseding indictment in this case for one simple reason – Madigan had committed no crime. The government’s theory that Madigan conspired to commit extortion, put forth in the September 26, 2014 Affidavit as well as numerous other subsequent affidavits to support its Title III surveillance, was purposefully false.

The Court should suppress the contents of the communications intercepted as a result of the September 26, 2014 Title III application, and any evidence derived therefrom

* Jason Meisner and Ray Long…

In their motion to suppress, Madigan’s attorneys, Sheldon Zenner, Daniel Collins and Gil Soffer, have asked U.S. District Judge John Robert Blakey for an evidentiary hearing to determine whether investigators made any misrepresentations in its wiretap applications.

Though rarely granted, the so-called “Franks hearing” could provide a fascinating glimpse into how the government built its investigation, first by gathering evidence on Solis’ own misdeeds, then pressuring him into cooperating against two of the state’s most powerful and longstanding politicians, Madigan and Chicago Ald. Edward Burke.

The agents who handled Solis’ stunning turn as an FBI mole could be required to testify should the judge order the hearing. Blakey has set a telephone status hearing for March 10 to discuss the schedule going forward.

* From the motion to dismiss…

After years of investigation, thousands of hours of wiretaps and consensual recordings, wide-ranging searches of homes and offices, and countless witness interviews, the government’s case against Michael J. Madigan comes down principally to this: He recommended people for jobs with ComEd and AT&T while legislation of interest to those utilities was pending before the Illinois House of Representatives. Roughly half of the sprawling Superseding Indictment charges Madigan with criminal conduct on that basis. It alleges that he had the capacity to and did promote or defeat legislation consistent with the interests of ComEd and AT&T; and that— after more than a decade of investigation, during which time Madigan made countless job recommendations for innumerable candidates to ComEd, AT&T, and elsewhere—four of those candidates (which do not reflect all, most, or even many of Madigan’s recommendations) did “little or no” work once hired.

What the Superseding Indictment does not allege, however, is a connection between the job hires or any other benefits that Madigan purportedly received and any legislative decision that Madigan made. In 117 pages, the Superseding Indictment does not allege a single word spoken to or by Madigan linking these simple job recommendations to any legislative act by him. Nor does it more generally allege that Madigan took or refrained from taking (or agreed to take, or refrain from taking) legislative action because of, in exchange for, or resulting from any hiring decisions made by ComEd and AT&T. The government carefully avoids any such factual allegation. Instead it asserts, in the most conclusory terms, that Madigan “accepted” job hires “intending to be influenced” in connection with legislation affecting the utilities, on which he voted “in furtherance” and to “effect [the] objects and purposes” of a conspiracy to influence him.

These allegations do not state a federal crime. Instead, what they describe is a commonplace practice in which public officials and party leaders make job recommendations for constituents and associates to employers within their jurisdictions. Those employers may (and often do) accept such recommendations, and they may well do so in an effort to curry favor with the officials in question. But currying favor with government officials—even those with the capacity to influence legislation of interest to the employers—is legal. “Accepting” job hires made by employers, even if they were made with the desire to curry favor, is legal. In contrast, corruptly soliciting something of value in return for official action is not. The Superseding Indictment blurs that distinction entirely, rendering its cornerstone allegations involving ComEd and AT&T deficient under the corruption statutes and constitutionally untenable.

The remaining counts of the Superseding Indictment target conduct unrelated to ComEd and AT&T, alleging behavior involving real estate projects and Madigan’s private law firm. Some of those counts fall short because of defects in the statutes the government invokes and the thinness of the allegations.

One overarching failure stands out, however: the government’s effort to allege a single, all-encompassing RICO charge in Count One. That count purports to graft together, into a RICO conspiracy, one half of the Superseding Indictment (alleging misconduct involving ComEd and AT&T) with the other half (alleging misconduct involving Madigan’s law firm). But the alleged facts, purposes, and major players at issue in the two halves of the Superseding Indictment are wholly distinct. A RICO enterprise requires a common purpose. On the face of the Superseding Indictment, no such common purpose is alleged. Whatever may have been the government’s reason for cobbling disparate claims together—whether to bolster its cornerstone ComEd/AT&T allegations, or otherwise—it has failed to allege a proper RICO conspiracy claim.

In short, this far-flung Superseding Indictment impermissibly treats lawful ingratiation as illegal bribery, and stitches together unrelated allegations of purported misconduct into a single scheme. The mismatch between the conduct alleged and the statutes invoked is a fatal defect that precludes this prosecution. For these reasons and others described below, Counts One through Seven, Eleven through Fourteen, and Twenty-One through Twenty-Three are fatally infirm, constitutionally and otherwise. Madigan respectfully requests their dismissal either in full or in part.

* More…

“[A] good will gift to an official to foster a favorable business climate, given simply with the ‘generalized hope or expectation of ultimate benefit on the part of the donor,’ does not constitute a bribe.” United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (quoting United States v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980)); cf. Sun–Diamond, 526 U.S. at 405–06 (18 U.S.C. § 201(c) does not criminalize acts taken “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future”). Simply put, “ingratiation and access . . . are not corruption.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 360 (2010). To avoid sweeping this innocent conduct into the ambit of federal anti-bribery statutes, the Supreme Court has required the government to identify a quid pro quo—that is, “a specific intent to give or receive something of value in exchange for an official act.”

* State constitutional angle…

The Illinois bribery statute sweeps much more broadly than the Constitution permits because of its wide and undifferentiated coverage of “any act related to the employment or function of any public officer.” 720 ILCS § 5/33-1(d)–(e). This statutory text covers conduct that lies within the protection of the First Amendment. That such all-encompassing coverage chills protected activity is shown most clearly by the comparison of Illinois law to the federal statute, 18 U.S.C. § 201(a)(3), at issue in McDonnell v. United States, 579 U.S. 550 (2016). […]

The Court in McDonnell narrowed the federal statute substantially, in large measure to avoid constitutional concerns that would arise from an expansive and unbounded interpretation of “official act” encompassing virtually any act an official might perform. Because the statutory narrowing approach in McDonnell is not available here for Illinois laws, those same constitutional concerns require a holding that the Illinois bribery statute is unconstitutionally overbroad. […]

The Illinois official misconduct statute similarly lacks the safeguards to avoid sweeping more broadly than the Constitution permits. […]

The Illinois bribery statute is impermissibly vague as applied because it did not provide Madigan with fair notice that his conduct was (even arguably) criminal, nor did it protect him from arbitrary and discriminatory enforcement. […]

Similarly, even if § 5/33-3(a)(4) of the Illinois official misconduct statute is not facially void for vagueness, it is unduly vague as applied. […]

The government cannot save the ComEd-related counts brought under § 666 by jettisoning its bribery theory in favor of an intent-to-reward (or gratuity) theory. As an initial matter, this Court should follow the thoughtful analyses of the First and Fifth Circuits and hold that § 666 only criminalizes bribes, not gratuities.

* The “lots of other people did it” defense…

Arbitrary Enforcement. As applied here, the Illinois bribery statute also fails to protect against arbitrary and discriminatory enforcement. […]

The threat of arbitrary and discriminatory enforcement of the Illinois bribery statute is not merely hypothetical. Publicly available information shows that other Illinois politicians have recommended political allies and associates for private-sector jobs—at utility companies, no less—yet no one has suggested that their conduct violated the Illinois bribery statute. For example, Illinois House Minority Leader Jim Durkin recommended former Illinois State Representative Thomas Walsh for employment with ComEd in November 2015, as the FEJA negotiations were ongoing. McClain told ComEd, “I really believe it is a wise move to respond favorably to Leader Durkin’s request.” In January 2016, McClain emailed ComEd again, asking: “Did we hire Tom Walsh?” ComEd engaged Walsh as a subcontracting lobbyist in February 2016. In December 2016, Leader Durkin voted in favor of FEJA.

Madigan has been using that very same argument for more than two years, so far to no avail.

And it goes on.