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In re Motion to Disclose Intercepted Communications

January 23, 2009

IN RE: MOTION TO DISCLOSE INTERCEPTED COMMUNICATIONS
UNITED STATES OF AMERICA
v.
ROD BLAGOJEVICH AND JOHN HARRIS



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

The United States of America (the "government") on December 29, 2008, filed a Motion to Disclose Intercepted Communications to the Special Investigative Committee of the Illinois House of Representatives (Dkt. No. 16) in this case. In this pending motion, the government requests authorization to disclose to the members of the Special Investigative Committee four recorded phone communications, in redacted form, that agents of the Federal Bureau of Investigation electronically intercepted during their investigation into allegations of corruption against Illinois Governor Rod R. Blagojevich. For the reasons set forth in this Memorandum Opinion and Order, I grant the government's motion.

Background

On December 9, 2008, agents of the Federal Bureau of Investigation arrested Illinois Governor Rod R. Blagojevich pursuant to a criminal complaint filed in this case. That complaint charged defendant Blagojevich with two counts of alleged criminal conduct: one count of conspiring to defraud the citizens of Illinois of their right to his honest services in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, 1346, and 1349, and one count of corruptly soliciting and demanding the firing of Chicago Tribune editorial board members who had been critical of defendant Blagojevich, in exchange for the awarding of millions of dollars in financial assistance from the State of Illinois in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2. For a period of time prior to the filing of the criminal complaint in this case, the government, as part of its investigation into defendant Blagojevich's activities, sought and received court authorization to use wire and electronic surveillance to intercept communications over the residential phone of defendant Blagojevich and the cellular phone of "Lobbyist 1." Evidence derived from those court-authorized electronic interceptions formed, in part, the basis of the government's complaint against defendant Blagojevich.

Within days of defendant Blagojevich's arrest, the Illinois House of Representatives adopted House Resolution 1650, creating a Special Investigative Committee "for the purpose of (i) investigating allegations of misfeasance, malfeasance, nonfeasance, and other misconduct of Governor Rod R. Blagojevich and (ii) making a recommendation as to whether cause exists for impeachment." H.R. Res. 1650, 95th Gen. Assem., Reg. Sess. (Ill. 2008). The resolution required the Committee, which was composed of twenty-one members of the Illinois House of Representatives, to submit a report of its findings to the full House before the expiration of the 95th Illinois General Assembly. Id. In furtherance of their duties, the members of the Special Investigative Committee in a letter dated December 18, 2008, requested that the government disclose various materials acquired during the government's investigation of defendant Blagojevich, including the communications intercepted by the court-authorized electronic surveillance, but before the Committee received the intercepted communications, the Committee issued a 61-page Final Report to the House of the 95th Illinois General Assembly. The Final Report found that the totality of the evidence warranted impeachment of defendant Blagojevich for cause and recommended that the House of Representatives consider an Article of Impeachment against defendant Blagojevich. The next day the House impeached defendant Blagojevich. The 95th Illinois General Assembly expired at midnight on January 14, 2009.

In response to the Special Investigative Committee's December 2008 request for disclosure of the government's investigative materials, the government has applied to me for authorization to disclose to the members of the Special Investigative Committee four specific intercepted communications, in redacted form, under 18 U.S.C. § 2517. The four communications the government seeks to disclose relate to paragraph 68(e) of the criminal complaint and are alleged by the government to be conversations of defendant Blagojevich and other interceptees. The government, in accordance with my order of December 24, 2008, provided notice to the interceptees of its motion to disclose the electronically intercepted communications, and on January 8, 2009, I granted the interceptees until noon on January 23, 2009, to file motions to suppress disclosure of the communications. (Hr'g Tr. 38-39, Jan. 8, 2009.)

The interceptees have now had an opportunity to review copies of the four recordings that are the subject of the government's motion as well as an opportunity to respond to the government's motion. Neither defendant Blagojevich nor the other interceptees object to the redactions, and the person identified as "Lobbyist 1," who has identified himself as "Unindicted, Unidentified Interceptee," takes no position on the redactions. (Hr'g Tr. 4.) None of the interceptees have filed motions to suppress disclosure of the intercepted communications despite representations by three of the interceptees, including defendant Blagojevich, that they intended to object. (Hr'g Tr. 4-5.) Robert Blagojevich, defendant Blagojevich's brother, filed a document informing the court that he has decided not to file a motion to suppress at this time. (Dkt. No. 48.) The "Unindicted, Unidentified Interceptee" and defendant Blagojevich filed documents entitled "Position Papers," which set forth their positions in opposition to disclosure of the four redacted recordings on the grounds that the government's motion is moot and that preparation of motions to suppress could not be timely completed. (Dkt. Nos. 49 & 51.)

Today, the government supplemented its request to disclose the electronically intercepted communications. The documents submitted by the government show that, following expiration of the 95th Illinois General Assembly, the House of the newly-convened 96th Illinois General Assembly reconstituted the Special Investigative Committee for the purpose of continuing the investigation of defendant Blagojevich:

WHEREAS, The work of the Special Investigative Committee is ongoing, and the Committee may be required to take further evidence, in the form of testimony or documents or other materials . . .

RESOLVED, That the Special Investigative Committee shall have the authority, duties, and purposes as set forth in House Resolution 1650 of the Ninety-Fifth General Assembly, including the purposes of investigating allegations of misfeasance, malfeasance, nonfeasance, and other misconduct of Governor Rod R. Blagojevich and making a recommendation as to whether cause exists for impeachment, and shall further have the authority and duty to refer any further evidence the Committee may acquire to the House Prosecutor who is designated to prosecute in the impeachment trial of Governor Rod R. Blagojevich before the Illinois Senate . . . .

H.R. Res. 0004, 96th Gen. Assem., Reg. Sess. (Ill. 2009). The documents also show that, by letter dated January 22, 2009, the Chair of the Special Investigative Committee reaffirmed the Committee's request for the intercepted communications.

The government, which expressly took no position on whether the Special Investigative Committee should recommend impeachment, presents in its motion only questions of law. The primary question is whether the Special Investigative Committee is qualified to receive disclosure of, and thereafter to use, the copies of the four redacted recordings pursuant to 18 U.S.C. § 2517(1) and (2). For the reasons set forth below, the court finds that the members of the Special Investigative Committee are and remain investigative officers to whom the government may disclose copies of the four redacted recordings of the electronically intercepted communications.

Analysis

Ordinarily recordings of communications intercepted by the government are not disclosed before an indictment is returned against a criminal defendant. This case, however, is exceptional and comes before me in this pre-indictment setting, as the Chief Judge of the United States District Court for the Northern District of Illinois, pursuant to my authority to hear "[a]ll requests for authorization for interceptions of wire and oral communications ...


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