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In re: Motion to Disclose Intercepted Communications to the United States Senate No. 06 GJ 1160 Select Committee on Ethics

May 26, 2009

IN RE: MOTION TO DISCLOSE INTERCEPTED COMMUNICATIONS TO THE UNITED STATES SENATE NO. 06 GJ 1160 SELECT COMMITTEE ON ETHICS.
UNITED STATES OF AMERICA
v.
ROD BLAGOJEVICH, ET AL.



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 May 21, 2009, filed under seal a Motion to Disclose Intercepted Communications to the United States Senate Select Committee on Ethics (the "Senate Ethics Committee"). With the consent of counsel for the government and respondents United States Senator Roland Burris and Robert Blagojevich, I lifted the seal on the motion and the proceedings to which the motion relates.

The motion, which was heard today, comes before me 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 or other investigatory matters arising under Chapter 119 of Title 18 of the U.S. Code." N.D. Ill. L. Cr. R. 50.2(2). In its motion, the government requests authorization to disclose to the members of the Senate Ethics Committee a copy of a recorded telephone conversation between Roland Burris and Robert Blagojevich that agents of the Federal Bureau of Investigation electronically intercepted on November 13, 2008, during the investigation into allegations of corruption against then-Illinois Governor Rod R. Blagojevich. For the reasons set forth in this Memorandum Opinion and Order, I grant the government's motion.

Background

For a period of time before federal criminal charges were filed against former Illinois Governor Rod R. Blagojevich and others, the government, as part of its investigation into Rod Blagojevich's activities, sought and received court authorization to use wire and electronic surveillance to intercept communications over a land-line telephone number assigned to the office of Rod Blagojevich's campaign committee, Friends of Blagojevich (FOB). Rod Blagojevich's brother, Robert Blagojevich, was the chairman of FOB. On November 13, 2008, during the authorized period of interception, Federal Bureau of Investigation agents monitored and recorded a conversation on the FOB land-line between Robert Blagojevich and Roland Burris related to the United States Senate seat vacated by President Obama. On December 30, 2008, then-Governor Rod Blagojevich appointed Burris to fill President Obama's vacant Senate seat. A federal grand jury subsequently returned a superseding indictment against Rod Blagojevich, Robert Blagojevich, and others. The indictment charged former Governor Blagojevich with, among other things, scheming to defraud the people of Illinois of their right to his honest services by attempting to obtain personal benefit in exchange for the appointment to the vacant Senate seat.

The Senate Ethics Committee has now opened a preliminary inquiry into the "circumstances surrounding the appointment and seating of Senator Roland W. Burris." (5/21/09 Mot. to Disclose Intercepted Communication to U.S. Senate Select Comm. on Ethics, Ex. 2.)

The Committee is authorized, by its authorizing resolution, to investigate allegations of improper conduct by members, officers, and employees of the United States Senate. S. Res. 338, 88th Congress (1964). In furtherance of their duties, the Senate Ethics Committee, by letter dated March 19, 2009, requested that the Department of Justice disclose, among other things, all "intercepted . . . communications in which Senator Roland Burris is a participant or is discussed or mentioned by name and which are related to fundraising for then-Governor Blagojevich or to the appointment of a replacement to fill the United States Senate seat vacated by then-Senator or then-President elect Barack Obama." (5/12/09 Mot. to Disclose Intercepted Communication to U.S. Senate Select Comm. on Ethics, Ex. 2.)

In response to the Senate Ethics Committee's request, the government has applied to me under 18 U.S.C. § 2517 for authorization to disclose to the members of the Senate Ethics Committee the recording of the communication between Roland Burris and Robert Blagojevich intercepted on November 13, 2008. The government provided notice of its motion to the interceptees, and the interceptees represented to me in open court that they have no objection to disclosure of the recording to the Senate Ethics Committee. (Hr'g Tr., May 26, 2009.)

The government, which expressly takes no position on whether the Senate Ethics Committee should take further action or whether the intercepted call supports or rebuts an allegation of improper conduct, presents in its motion only questions of law: whether the Senate Ethics Committee is qualified to receive disclosure of, and thereafter to use, the copy of the recording between Burris and Robert Blagojevich under 18 U.S.C. § 2517(1), (2), and (3). For the reasons set forth below, the court finds that the members of the Senate Ethics Committee are investigative officers to whom the government may disclose a copy of the recording of the electronically intercepted communication.

Analysis

Section 2517(1) of Title 18 provides that: Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

18 U.S.C. § 2517(1). Section 2510(7) defines "investigative or law enforcement officer" as "any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses."

18 U.S.C. § 2510(7). And, according to at least one federal appellate court, disclosure under section 2517(1) does not require prior judicial approval so long as the mandates of Title 18, Chapter 119 have been met. In re Grand Jury Proceedings, 841 F.2d 1048, 1052 (11th Cir. 1988).

Although the federal courts have not had occasion to consider whether members of the Senate Ethics Committee are investigative officers under section 2510(7), I have recently addressed a question similar to the one raised by the government's motion. In In re Motion to Disclose Intercepted Communications, 594 F. Supp. 2d 993, 998 (N.D. Ill. 2009), I concluded that members of the Illinois House of Representatives Special Investigative Committee, which was created by law to investigate alleged misconduct by then-Governor Rod R. Blagojevich, were "investigative officers" under section 2510(7) and thus qualified to receive intercepted communications under section 2517(1) and (2). In reaching my conclusion, I applied the two-step analysis set forth by the Sixth Circuit in In re Electronic Surveillance, 49 F.3d 1188, 1190-1191 (6th Cir. 1995), and determined that the Special Investigative Committee members were entitled to receive and use the intercepted communications because (1) ...


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