U.S. District Judge James Zagel denied a request from Blagojevich's defense to delay the trial so they could digest the Supreme Court's ruling on the honest service law.
Zagel told the defense there is plenty of time to digest it while former aide John Harris continues his testimony. Zagel said the ruling "does not change the nature of this testimony."
Blagojevich has pleaded not guilty to federal corruption charges, including honest services. The Supreme Court's ruling limits the use of the law, which makes it illegal for public officials to deny taxpayers the right to their honest services, by prosecutors. Now 'honest services' charges are limited to only bribery and kickbacks. In Blagojevich's case, the government must prove that he got something or conspired to get something of personal benefit in return for an official act.
"They're going to have to show a bribe and that he was not honest and that's a lot different than saying he was not honest in doing his job," said Marc Martin, defense attorney.
"As Thurgood Marshall once said, 'You do the best you can with what you got,'" said Sam Adam Jr., Blagojevich attorney.
Anticipating the Court to significantly alter the honest service clause, the prosecution re-indicted Blagojevich earlier this year so as to be less reliant on it. Racketeering, bribery and attempted extortion and conspiracy are still at the heart of the case and the ruling does not affect that.
"In terms of this case, it probably doesn't mean anything. Everybody went in knowing there was a possibility that honest services would be set aside. The government re-indicted, if you remember, with a number of alternative counts. It's not unusual in criminal cases for some counts to get kicked out. The jury will be instructed appropriately and then will have no impact whatsoever. I'm sure defense lawyers will be arguing it'll have an impact," said Professor
Prosecutors believe their case is quite strong without the honest services charges. The strength lies in the tapes, they say, and on Thursday Blagojevich was heard saying he would appoint himself to the U.S. Senate seat left open by Pres. Barack Obama.
"My fallback position, I'm going to put myself in the position and let the people decide," Blagojevich said on tape. "My feeling is if I'm cornered, I'll take that."
At one point Blagojevich tells his brother, Robert, he might name Louanner Peters to the Senate seat to serve as a placeholder until Blagojevich takes over.
"Oh Jesus that's ugly," said Robert Blagojevich.
"Are you nuts? What's uglier? That? Or getting impeached?" replied the former governor.
Those tapes are included in evidence as part of John Harris' testimony. Harris is Blagojevich's former chief of staff. His testimony continued on Thursday.
The recordings were made by the FBI in November 2008. Thursday's recordings included calls between Harris and Blagojevich talking about reports that Valerie Jarrett was taking a position at the White House. Blagojevich had speculated earlier that if he were to appoint Jarrett to the Senate seat with Obama's backing, he hoped to receive an appointment of his own from the president.
When it becomes clear an appointment from Obama isn't going to happen, Blagojevich said, "They're not willing to give me anything but appreciation. F--- them."
Blagojevich is heard discussing several different options for the Senate seat, including Jesse Jackson, Jr., whom he calls a "bad guy."
At one point Blagojevich asks Harris, "Why don't we start looking for an African American Tammy Duckworth."
