"Theft of honest services" is one of the many charges Blagojevich faces in his corruption case. The U.S. Supreme Court is expected to rule on the issue by the end of the this term.
For three decades, "theft of honest services" has been a strong tool for prosecutors in fighting public corruption, but its vagueness has led to legal challenge. And because of the legal challenge, a number of public corruption trials and sentencings- in New Jersey, Ohio, Louisiana, Pennsylvania - have been postponed in order to see what the court decides.
So Blagojevich's lawyers argued that if other cases are being temporarily put on hold, Blagojevich's should be, too.
Racketeering, mail fraud, wire fraud, bribery, attempted extortion. Amidst that laundry list, the former governor is also charged with "theft of honest services". It's an oft-used charge in public corruption cases, but it's got such a vague definition, the Supreme Court may well water it down or throw it out altogether.
"We are saying it would be improper to begin a trial charging anyone with an offense which might very well be declared unconstitutional two to three weeks into that very trial," said Sheldon Sorosky, Blagojevich attorney.
Blagojevich's attorneys wanted to hold off until the Supreme Court ruled. Their request for a delay in the trial is not new. Twice they've asked Judge James Zagel for a delay in the trial start and twice he has said no. What's different now is that the Blagojevich team went over Judge Zagel and asked the Seventh Circuit Court of Appeals to put the brakes on the trial start. The court of appeals dismissed the effort Tuesday.
"Any defense lawyer worth anything will tell you that they ought to know exactly what they're charged with before they go to trial. Our strategy will change if it isn't honest services. No question about it," said Sam Adam, Blagojevich attorney.
Prosecutors have argued - and Judge Zagel has agreed - that there's no reason for a delay. Neither side is supposed to say anything about 'honest services' when the trial starts, and if that piece of law gets pitched in the wastebasket, the other charges against Blagojevich are all still intact. So why wait? Well, if it does start as scheduled and the Supreme Court throws out the 'honest services' charge, Blagojevich's lawyers say they'll ask for a mistrial.
"Whether it's granted or not that has to be our immediate reaction to it. We'll be going to trial on an offense we're no longer on trial for," said Sorosky.