All along, Blagojevich has claimed the secret government recordings would prove he is innocent of all charges.
The judge and attorneys for the brothers Blagojevich, Rod and Robert, have been wading through tape recordings they want to play at trial. That may be wrapped up by Thursday, and by week's end, it may known who is taking the stand-- and when-- for the defense.
Blagojevich says he will testify and his legal team will use a strategy called "Lack of Willfullness." Did he really intend to trade the Senate seat? Did he really intend to shakedown the CEO of a children's hospital? The defense says absolutely not. And their legal strategy will be to argue that Rod Blagojevich may have said a lot of things -- and in a not particularly pleasant fashion – but at no time did he have any willful criminal intent.
Furthermore, the defense will argue that Blagojevich was surrounded by influential top staffers who are lawyers. Often on the tapes, they are heard agreeing with Blagojevich, and never saying to him, 'Governor, what you're doing here may be a no-no.'
" The advice of counsel itself is not a defense, but the fact that he had the advice of counsel shows that he didn't make an attempt -- that he had no intent to violate the law," said Sam Adam Sr., Blagojevich's attorney.
"That's a problem. If I don't know that the speed limit is 30, and I'm going 60, I don't have to know that what I'm doing is wrong," said Prof. Richard Kling of the Kent College of Law.
Showing lack of willful intent --many legal experts believe -- is an uphill argument, in part, because of what Blagojevich says on the tapes and what he does not say. He does not specifically ask in any of the conversations for legal advice, though he does ask and receives political opinions from his lawyers.
Blagojevich is being prepped to take the stand, and his challenge will be, on cross-examination, to explain what he was saying on tape.
"If I'm the prosecutor cross-examining, I pick the top 10 most difficult tapes for him to explain, and then, in a leading fashion, walk him through statements. 'And sir, when you said, this you were working for the best interest of the state of Illinois?'" said Former Asst. U.S. Attorney Patrick Collins.
"He has to say, 'Listen, I got a bad mouth. I got a loose mouth. I say a lot of things I don't mean. A lot of times, people don't take me seriously, and I know they don't take me seriously. So, some of these conversations... I may have even been delusional,'" said DePaul College of Law's Prof. Leonard Cavise. "Some of these conversations didn't mean what it sounds like they meant."
The ex-governor and his attorneys have said almost daily -- because they're asked every day -- that Rod Blagojevich will take the stand, and so will his wife, Patti. The former governor's brother, Robert Blagojevich will also take the stand, but exactly when, and in what order is not yet clear.