Was There Enough Evidence to Arrest Gov. Blagojevich?

This is a rush transcript from "Hannity & Colmes," December 17, 2008. This copy may not be in its final form and may be updated.

ALAN COLMES, CO-HOST: United States Attorney Patrick Fitzgerald arrested Illinois Governor Rod Blagojevich last week to stem what he called a political crime spree which included the sale of Barack Obama's vacant Senate seat. But some are wondering what real evidence Fitzgerald has.

So far nothing has been disclosed to support the claim that Blagojevich received anything of value in exchange for Obama's senate seat, so did Fitzgerald act too soon? With us former deputy assistant attorney general and partner at diGenova and Toensing, LLP, Victoria Toensing.

Victoria, welcome back to the show.

• Video: Watch Sean & Alan's interview

VICTORIA TOENSING, ATTORNEY: That's almost as hard to say as Blagojevich.

COLMES: I'm just trying to practice saying the thing.

SEAN HANNITY, CO-HOST: Hannity. H-A-N-N-I-T-Y.

COLMES: No wonder the e-mails keep bouncing back.

COLMES: So is there any evidence here to get him on a crime at this point?

TOENSING: Well, we don't know that because ordinarily the prosecutor doesn't tell everything that he has, but it certainly looks like this was cut short prematurely because for all that we've heard about and I think we can rest assured we would have heard if payments had crossed hands, this was cut off before anybody received anything of value, and although you can prosecute as an attempt or a conspiracy, it's a real hard jury appeal not to have the money actually changed hands.

COLMES: All right. So the issue is whether anything illegal happened here, and if you're just talking about the idea of pay for play, is that illegal or do you have to actually have some kind of exchange before you've done anything that breaks the law?

TOENSING: You don't actually have to have an exchange, but certainly it is helpful for the jury. What you have to do is having demanded it, then the law will probably let you over the threshold.

Here's the problem with the political situation. Because so many — I mean it is — it's a part of anybody running for office. You ask for campaign contributions. And so we would all agree that somebody gives 50 grand to Obama, and ends up being an ambassador, that's not a crime, right?

Because we don't have anything that's saying all right. I'll give you an ambassadorship.

COLMES: And it happens all the time.

TOENSING: Every single time there's an ambassador chosen. So you don't have that specific quid pro quo, but the Supreme Court and all the other courts have said look, when it's campaign contributions, you really have to have a specific quid pro quo. Now those statements by the governor, they sounded pretty mean, but you know what his lawyer's going to argue? He was just being a blow hard. He was just saying things. He knew he was being taped. That's a problem.

HANNITY: Hey, Victoria, good to see you. Sean Hannity here.

TOENSING: Good to be here, Sean.

HANNITY: Are you as worried as I am — look, The Chicago Tribune is a great newspaper, they have great reporters. I don't blame The Chicago Tribune, they have a hot story. They sat on the story for a while, they want the story out. But they had to get the story, it seems to me from Fitzgerald's office. Where else could it have come from?

TOENSING: I don't know. That would be the only people who would know about it. The investigators and the prosecutor, but you're never going to find out how they got that, as you well know. But you see, he's bothered me — forget about who leaked this story. We don't have that evidence, but the statements that he made at that press conference were so — they were unethical, they violated all the rules of ethics that I know for a prosecutor. You're not supposed to do anything that would heighten the public's condemnation of the defendant. You're just not supposed to do it. And he did it.

HANNITY: But wasn't that part of your criticism in the case? We knew that Fitzgerald knew in the case of Valerie Plame issue that was it Richard Armitage who was the leaker, and the case went on forever, and then it became a perjury trap for people.

But look, the issue of conspiracy, you're right on. The conspiracy to sell the office is certainly a possibility of a crime. He certainly in his criminal complaint is not going to outline every single bit of evidence he has, so we have to assume he has more. Certainly people will flip, but I'm looking at this time line, and the fact that Valerie Jarrett pulls out after she wanted this Senate seat by all accounts, she pulled out at the exact moment when, number one, we're getting information or talk about some type of quid pro quo. The timing seems curious to me.

Does it to you?

TOENSING: Well, very curious. She pulled out, and at the time she did so, I thought why is he making this public announcement that she's pulling out, but Fitzgerald gives the rationale for stopping this thing when he did. He said oh, my goodness, what would happen if we had a senator appointed, and I'd say hey, we've got two crooks. He wasn't going to appoint somebody, according to Fitzgerald, unless that person forked over money. It's a two-fer, isn't it. You have the governor, the payee, and the payer. It seems to me what we had here was a payment interruptus.

HANNITY: Payment interruptus. That's a great way to put it.

When do you think we can hear the Rahmbo dead fish tape and secondly when do you think — why do you think Fitzgerald is allowing Obama to get away with this release of information on Christmas week?

But we only have 20 seconds.

TOENSING: Well, I think Fitzgerald is a control freak, and he felt better about having it released next week. He controls a lot of things. He threatens a lot of people that you all don't know about. He is a Spitzer. He is the next Eliot Spitzer, and the press ought to start looking at it.

COLMES: What are you saying?

HANNITY: Thank you.

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