Rod Blagojevich’s lawyers on Monday moved to have prosecutors turn over FBI notes from an interview with President Obama – something a judge turned down a year ago.
It’s a request that at least one legal observer says is unlikely to be met.
Still, defense lawyers say insight into Obama’s interview will help them cross-examine union leader Tom Balanoff in Blagojevich’s retrial, set to begin April 20.
Testifying at the former governor’s first trial last summer, Balanoff said he received a call from Obama the night before the presidential election, which he saw as a signal to have discussions with Blagojevich about the possible appointment of Valerie Jarrett to Obama’s soon-to-be-open U.S. Senate seat.
Blagojevich’s team says that contradicts an Obama team report that was issued Dec. 23, 2008. That report stated “President Obama did not direct anyone to speak on his behalf regarding the White House’s preferences for the Senate seat appointment,” Blagojevich lawyers wrote.
In Dec. 2008, FBI agents and prosecutors interviewed Obama, then President-elect, along with his then chief-of-staff-in-waiting Rahm Emanuel and advisor Jarrett as they transitioned into the White House. Investigators were interested in their interactions with Blagojevich, who had been arrested earlier that same month with scheming to sell Obama’s vacant Senate seat.
A White House spokesman said, “We’re not going to comment on an ongoing criminal proceeding.” Balanoff’s lawyer could not be reached for comment.
Defense lawyers complain that if Obama were anyone else but the president, they would have the FBI notes from the interview, called a “302.”
“Based upon the content contained in the disclosed 302s of other individuals that were tendered by the government, the Obama 302s at issue would almost certainly have been disclosed if the interviewee was anyone other than the President,” Blagojevich’s lawyers wrote.
Ronald Safer, a former federal prosecutor, said the government would only be required to release the interview notes if they contained information showing a defendant’s innocence or called into question a witness’s testimony. Since Obama is unlikely to be called as a witness in the case, “there’s no obligation to turn it over,” Safer said.
Last year, Blagojevich’s attorneys asked U.S. District Judge James Zagel to subpoena Obama and release the interview notes, requests the judge denied.
Blagojevich’s lawyers could, as an intermediate step, ask Zagel to review the 302 to verify that it contained no information exonerating Blagojevich, Safer said. But the judge could grant or deny that request, too.
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