Friday, December 12, 2008

For the moment let's forget about Jon Burge . . .

Posted By on 12.12.08 at 10:04 PM

Former state's attorney Richard Devine tells Crain's Chicago Business that he hasn't "been contacted by potential clients in the federal investigation of the Blagojevich administration." Bruce Meckler, cochairman of Meckler Bulger Tilson Marick & Pearson, the law firm Devine is joining, says he hasn't been contacted either.

Wrong question, maybe?

Devine, for the nth time, is asked about Jon Burge and police brutality. 

"We never backed off if there was evidence to support charges,” Crain's says Devine replied. “You have to get beyond the generalities and look at the evidence.” And Devine says the statute of limitations kept him from bringing charges against Burge.

Another wrong question, maybe?

The right question: Devine may be missing a nice paycheck if he doesn't get to defend Blagojevich, but did he ever think about prosecuting him? Devine said back in 2005 that he was looking into the allegations of the governor's own father-in-law, alderman Richard Mell, that the governor's office was offering appointments to state boards and commissions in exchange for contributions to Blagojevich's campaign fund.

And . . . ?

I know -- Patrick Fitzgerald already had a federal investigation going, and prosecutors don't like to get in each other's way. But an intriguing op-ed by Maureen Martin, an attorney with the Heartland Institute, in Thursday's Tribune argues that "not every crime is a federal crime. . . . A federal criminal statute must link the conduct to a federal constitutional power." Martin continues, "Congress usually uses the interstate commerce clause and, increasingly, the federal spending clause. Otherwise, crimes remain among the police powers constitutionally retained by the states."

In short, Devine had a stronger hand to play against the governor than Fitzgerald did. Martin's reading of the criminal complaint against Blagojevich finds the U.S. attorney straining to make a case that will support a federal indictment: "Our Constitution does not allow every local bribery incident to be classed as a federal crime. The states retain that power."

But if Devine does get the job defending Blagojevich, he has a powerful argument for the jury: "I investigated him myself. If I thought he'd done something wrong, don't you think I'd have indicted him?"

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