CHICAGO – Rod Blagojevich's defense attorney could find himself behind bars even as he works to keep his client out of prison.
Sam Adam Jr. faced that dilemma before presenting his closing arguments in the former Illinois governor's corruption trial on Tuesday, after he and the presiding judge clashed over whether he could mention witnesses who prosecutors did not call during the evidence stage of the trial.
Judge James B. Zagel warned Adam on Monday that he would hold him in contempt if he mentioned those witnesses.
Turning red and raising his arms, Adam responded, "I will go to jail over this."
A showdown between the gray-haired, by-the-book federal judge and the young, theatrical attorney — who made his name in Chicago's more freewheeling Criminal Courts Building — could come when Adam starts his closing.
If Adam mentions the potential witnesses, implying that they would have hurt the prosecution's case and helped Blagojevich, the judge could have him charged with contempt and taken into custody immediately.
"If he disobeys a ruling of the court, absolutely he could be held in contempt," said Brad Simon, a former federal prosecutor in New York and Washington, D.C., who now handles white-collar criminal cases as a defense attorney.
But others didn't think the 37-year-old Adam would risk being hauled off to jail, thereby robbing himself of a chance to make what could be the highest-profile closing of his career.
"He's a smart lawyer," said Michael Helfand, a Chicago attorney with no link to the case. "No one in their right mind tells a judge, 'I disagree with your order and I'll go to jail for it.' Going to jail won't help anyone."
Adam, Helfand speculated, may not have wanted to deliver only part of his closing on Monday and the rest on Tuesday, as the judge had told him earlier he would do.
"Now, he'll get his three or three and a half hours of closing on the same day," he said. "Sure, prosecutors will get a rebuttal. But the impression on jurors will be his big theater. It's his chance to be the big guy tomorrow."
Before the Blagojevich trial, Adam Jr. was best known for having delivered a fist-pounding, chair-thumping closing before the acquittal of R&B singer R. Kelly on child pornography charges two years ago.
Blagojevich, 53, has pleaded not guilty to 24 counts, including trying to sell or trade an appointment to President Barack Obama's vacated Senate seat for a Cabinet post, private job or campaign cash. His brother, Robert Blagojevich, 54, has also pleaded not guilty to taking part in that alleged scheme.
During the evidence stage of the trial, Zagel took Adam to task several times for repeating questions while he cross-examined witnesses. Once, Zagel asked jurors to leave the courtroom and admonished Adam for asking a witness about having a similar last name as a terrorist in the Sept. 11 attacks.
Also on Monday, the judge denied a media request for immediate access to the names of jurors, saying he would release them only after a verdict. Zagel said releasing the names could expose jurors to unwanted calls, e-mails and messages from Blagojevich detractors and supporters. Media attorneys had argued that the First Amendment presumes juror names are public and there was no justification for withholding them.
Prosecutors spent much of Monday hammering the message that U.S. Attorney Patrick Fitzgerald voiced from the day Blagojevich was arrested in December 2008: That the governor of Illinois was involved in a "political crime spree."
Assistant U.S. Attorney Chris Niewoehner methodically laid out the government's allegations of how Blagojevich tried to "shake down" everyone from a racetrack owner to a children's hospital executive to Obama. He opened his remarks by repeating the most famous phrase of the seven-week trial, a quote that will be forever associated with Blagojevich.
"I've got this thing and it's (expletive) golden," he recalled Blagojevich saying on one of dozens of phone calls secretly recorded by the FBI. "I'm just not giving it up for (expletive) nothing."
But in a pre-emptive shot at the arguments Blagojevich's attorneys are sure to make, Niewoehner also told jurors that that Blagojevich need not have made money or gotten a high-profile job in order for his alleged schemes to be illegal.
"You don't have to be a successful criminal to be a criminal," he said.
Robert Blagojevich's attorney, Michael Ettinger, said in his closing argument that jurors never heard any testimony linking his client's fundraising to demands for anything in exchange.
"Raising campaign funds is not illegal. It is not against the law," he said.