Le·gal In·sur·rec·tion

U.S. Attorney Patrick Fitzgerald has requested a three month extension of time to bring an indictment against Illinois Governor Rod Blagojevich, stating that he needed more time to review thousands of telephone intercepts and to interview new witnesses. While I can't presume to know what is in Fitzgerald's mind, it looks likely that Fitzgerald will seek an indictment under the Racketeer Influenced and Corrupt Organizations Act (RICO) charging Blagojevich with conspiracy to violate RICO through a corrupt enterprise, namely, the Office of the Governor of the State of Illinois.

The RICO statute originally was developed as a means of attacking organized crime. The theory behind the statute was that even if the government could not prove that a mob boss himself engaged in criminal activity, the command of a corrupt organization (for example, a crime family) was itself a crime. In this way, if a mob boss managed to create layers of organization insulating himself from specific acts of extortion, bribery and other criminal behavior, the mob boss still could be held criminally liable. Over time, the use of RICO was expanded to cover non-organized crime activities, including public corruption.

At its core, RICO lists certain "predicate" acts (such as extortion), and applies to defendants who conduct a pattern of predicate acts through an "enterprise." Under a conspiracy theory, anyone who participates in conducting the enterprise may be liable. RICO is a powerful law enforcement tool because RICO eliminates the need for the prosecution to prove that a defendant himself engaged in the predicate acts. Needless to say, there is a lot of litigation over what constitutes an "enterprise," and other issues under RICO.

In the public corruption sphere, RICO was used to convict Providence, Rhode Island, Mayor Vincent "Buddy" Cianci. The life and trials of Cianci are set forth in The Prince of Providence, written by Providence Journal reporter Mike Stanton, and later made into a movie. A political character even more colorful than Blagojevich, Buddy Cianci ran Providence like his own fiefdom and was hugely popular (and still is). Allegations of "pay-to-play" and other corruption were rife.

The federal government charged Cianci and his top assistants with dozens of counts of criminal activity relating to campaign contributions, payoffs, and other sundry matters. The feds had videotape of Cianci's top assistant taking a cash bribe. But the feds didn't have anything specific on Cianci. No wiretaps or video of Cianci taking, ordering, knowing about, or otherwise conducting criminal activity. One of the Counts in the indictment was a RICO conspiracy.

The RICO theory was that Providence City Hall (the Mayor's Office, and various administrative departments under Cianci's control) was a criminal "enterprise" controlled by Cianci. In this manner, Cianci could be held liable for the acts of those who reported to him even if there was no hard proof of Cianci's involvement in specific crimes.

Cianci was found not guilty of 26 specific criminal charges. The only charge on which he was convicted was RICO conspiracy. Cianci challenged the verdict on the ground that the government had not proven an "enterprise," but his appeals failed. Cianci ended up serving over five years in federal prison, and now is the most popular radio talk show host in Rhode Island.

What does all this have to do with Blagojevich? We don't know what the specific tapes of Balgojevich show, but as the Rodney King case showed, seemingly incriminating tapes can be attacked. Parts of conversations can be shown to be taken out of context, words may be "just words," and there may be no smoking gun of Blagojevich being anything other than a flamboyant politician prone to hyperbole and self-aggrandizement.

But with RICO, if Fitzgerald can prove that Blagojevich presided over a criminal "enterprise," these attempts to distance Blagojevich from his subordinates may be to no end. This is why Fitzgerald needs more time. Proving that there is an enterprise requires wide-ranging proof of people acting together such that there is an "enterprise." A few guys getting together to commit a single or series of crimes does not prove that there was an enterprise. This is why Fitzgerald needs to bring dozens of witnesses, hundreds of tapes, and a mountain of documents together, to show that Blagojevich was acting through an enterprise.

What would the criminal enterprise be? As in the case of Buddy Cianci, it would be the governmental organization under Blagojevich's control, namely, the Office of the Governor and the various executive departments and agencies controlled by the Governor. If you think you have seen screaming headlines so far, just wait until the entire executive branch of Illinois state government is alleged to be a criminal enterprise.