Updated 02/08/11 – 2:00 p.m.
CHICAGO (CBS) — Attorneys for deposed Gov. Rod Blagojevich filed a motion early Tuesday morning, demanding the release of a recorded phone conversation with then-White House Chief of Staff Rahm Emanuel.
Defense attorneys want prosecutors to produce the recorded conversation with Emanuel, who is now the front-runner in the race for Chicago mayor.
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They say it will show Emanuel was willing to help with a deal involving the sale or trade of President Obama’s vacated Senate seat.
The motion claims the conversation happened just the day before Blagojevich’s December, 2008 arrest on charges that include allegations he sought to sell or trade the appointment for personal gain.
Emanuel has not been accused of any wrongdoing.
The call between Emanuel and then Blagojevich chief of staff John Harris is not among hundreds of transcripts of secret FBI wiretaps recorded before Blagojevich’s arrest.
The defense motion points only to circumstantial evidence that it even happened, including a reference in a White House transition-team report from after the arrest that said Emanuel had “about four” conversations with Harris. The defense was given records of only three conversations, according to the motion.
“The fourth and final phone call is the call that is mysteriously missing,” it adds. “Piecing together multiple documents after the first trial, Blagojevich uncovered the fact that the December 8th phone call … took place.”
Federal prosecutors said they would not respond publicly to the claims of a missing tape.
Blagojevich’s attorney, Sheldon Sorosky, said the motion shouldn’t do any political damage to Emanuel. Sorosky said it could even help Emanuel because it asserts he never did anything improper. He noted the prosecution has also never accused Emanuel of wrongdoing.
The motion says the alleged call would support a defense contention Emanuel was willing to help with a deal in which Blagojevich would have named Illinois’ attorney general the Senate.
Emanuel, who is running for mayor, downplayed the importance of the motion, saying a White House “comprehensive review” two years ago found “nothing inappropriate or any deal making.”
He said he’s not worried the motion was filed two weeks before the election.
Blagojevich faces 23 charges at his April retrial, after jurors at his first trial last year agreed only on one of 24 counts and convicted him of lying to the FBI. Both prosecutors and defense attorneys have been ordered to file all pretrial motions by next week.
The defense’s latest filing comes just two weeks before Chicago’s mayoral election. Emanuel has a considerable fund-raising advantage and leads in polls in the race to replace retiring Mayor Richard Daley.
Emanuel has said little about the Blagojevich case publicly, often citing the ongoing legal proceedings for not commenting in detail. The White House report released in 2008 by the then president-elect’s office concluded neither Emanuel nor anyone else on Obama’s staff had had any “inappropriate discussions” with Blagojevich or his aides.
It found that Emanuel had had “one or two telephone calls” with Blagojevich and “about four” with Harris, who testified for the government at Blagojevich’s first trial.
In their motion, defense attorneys contend details of a final conversation they say took place between Emanuel and Harris would support Blagojevich’s claim that he merely hoped to forge a deal in which he would name Illinois Attorney General Lisa Madigan to the Senate seat in exchange for her father, powerful Illinois House Speaker Michael Madigan, pushing a legislative package favored by the governor.
Prosecutors have portrayed the supposed Madigan deal as a red herring designed to obscure multiple bids by Blagojevich to effectively sell the seat not for the benefit of his Illinois constituents, but for his own personal gain.
About half of the pages in Tuesday’s defense motion are blacked out, including names and excerpts from wiretap recording transcripts that federal Judge James Zagel has ruled aren’t pertinent to the case and should remain under seal.
Speaking after the motion was filed, Blagojevich attorney Sheldon Sorosky declined to offer details about why the defense could not have raised the issue of alleged missing evidence sooner.
But he denied the timing of the motion was designed to piggyback on publicly surrounding the Feb. 22 mayoral election, and he dismissed that the idea that raising Emanuel’s name in a pretrial document could harm him politically.
“It might help him — because it shows he didn’t do anything wrong,” he said. “If we’d said he did something wrong, perhaps this could be seen as election-related. But we’re not saying he did nothing wrong and neither is the government.”
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