THE ILLEGAL PART.

The New York Times' David Johnston pulls the punch bowl away from the party today and points out that as far as the most sensational elements of the criminal complaint against Rod Blagojevich, (namely the auction of Obama's former senate seat) are concerned, the Feds may not have a case:

In the case of Mr. Blagojevich, it would be legal for the governor to accept a campaign contribution from someone he appointed to the Senate seat. What would create legal problems for him is if he was tape-recorded specifically offering a seat in exchange for the contribution. What would make the case even easier to prosecute is if he was recorded offering the seat in exchange for a personal favor, like cash, a job or a job for a family member.

Indeed the government has claimed the wiretaps show that Mr. Blagojevich told his aides that he wanted to offer the seat in exchange for contributions and for personal favors, including jobs for himself and his wife.

But talk is not enough. Any case will ultimately turn on the strength of the tapes, and whether the governor made it clear to any of the candidates for the Senate seat that he would give it only in exchange for something of value.

The other instances in the complaint, like Blagojevich's alleged attempt to get editors at the Chicago Tribune fired in exchange for greasing the sale of Wrigley Field, or allegedly holding up state funding of a children's hospital in lieu of campaign donations, would seem like far more obvious instances of solicitation of bribery. Part of what is allowing the fevered speculation of the media and the right over the potential involvement of the Obama administration is that we don't know, in the case of the Senate seat, if that solicitation actually took place.

Yesterday, Obama's camp released a statement saying that the prosecutor, U.S. Attorney Patrick Fitzgerald, has requested that they not release the results of their internal review of communications between their office and Blagojevich's office. This hasn't stopped people like Hugh Hewitt from making wacky suggestions about how this situation should be handled. Hewitt tells his readers that Obama's statement is "slippery" and attacks him for having reneged on "full disclosure" without noting that the prosecuting attorney in the case asked him not to release the report. Hewitt then writes:

The president-elect appears to be hiding the facts about contacts between his staff and advisors and Blagojevich, which leads to the conclusion that there is something to hide here. To end the speculation, the president-elect need only request that the United States Attorney release transcripts of all conversations taped between Blagojevich and and Obama staffer or advisor.

Hewitt is suggesting that a prosecuting attorney can release evidence in a pending case for the sole purpose of alleviating a political dispute. But CNN's legal analyst Jeffrey Toobin explained in an email to me that under the federal law, Fitzgerald can only use the product of federal wiretaps under certain very limited circumstances -- in court documents or in open court, like a bail hearing or a trial. It would, in fact, be illegal for Fitzgerald to just throw out whatever part of the tapes Hugh Hewitt, radio host, thinks are relevant to his political agenda. It's not Fitzgerald's evidence. It's the state's evidence, and there are laws governing its use. 

Toobin adds, "It would be illegal, and rightly so, for him to be able to decide what he wants public and what not, just based on his sense of the political situation." But for Hewitt, there is no law, only politics. At which point you begin to understand how something like torture becomes "defensible."

H/T John Cole

-- A. Serwer