Rep. Dan Rostenkowski will face a difficult-but not impossible-job of convincing a jury to clear him of federal charges that he defrauded the government of more than $600,000.
That was the assessment Thursday of several former federal prosecutors, who give Rostenkowski (D-Ill.) a shot at victory as he prepares for the biggest battle of his political life.
The former chairman of the House Ways and Means Committee already is marshaling different troops to fight the 17 felony charges filed against him this week. On Thursday, he announced he had parted company with his lawyer, Robert Bennett, a D.C. powerhouse who had urged his client to make a deal with the government.
“I will soon retain new counsel, and will present a vigorous defense to the charges brought against me,” he said in a statement.
Key to that defense, former federal prosecutors said, is how well his new attorney can present him to a jury. And that may depend in part on how well Rostenkowski cooperates with his legal team. “The chairman” is known for wanting to run his own show.
To win jurors’ sympathy, the Chicago Democrat almost certainly will have to take the witness stand, setting the stage for an electrifying denouement to his high-stakes gamble against the indictment this week.
Rostenkowski’s legendary tools of persuasion, which have served him well in 36 years in Congress, will be even more critical in the courtroom.
Prosecutors are likely to play heavily on the charge that Rostenkowski tampered with a grand jury witness last fall, to try to persuade jurors that he knew he was violating the law.
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More than any other, the obstruction-of-justice charge is potentially “devastating,” and it could help prosecutors suggest that a “consciousness of guilt” permeated all of the 18-term congressman’s actions, said Joseph DiGenova, a former U.S. attorney in Washington who is now a criminal defense lawyer.
But the 66-year-old Rostenkowski, who has stoutly maintained his innocence, is far from defenseless, some lawyers said.
“It’s not a slam dunk (for the government),” said Charles Sklarsky, a former assistant U.S. attorney in Chicago now with Jenner & Block. “It’s like any other case. It relies on witnesses, whose testimony will be subject to cross-examination and judgments about credibility.”
Some former prosecutors noted that the indictment could have been much worse for Rostenkowski had it contained income tax evasion charges.
The decision not to indict him on tax evasion may have been calculated. It is very time consuming to prepare tax charges. In addition, in many circumstances, a defendant being tried for tax evasion can ask the court to transfer the case to his home jurisdiction, which would be “the government’s worst nightmare,” one defense attorney said.
Many of the charges against Rostenkowski have been public for some time, including that he had ghost payrollers, allegedly embezzled federal funds through the House post office and used taxpayer money to buy gifts and supporters.
Chicago Mayor Richard Daley said Thursday that he had been a recipient of some of the gifts cited in the indictment, and that he had been questioned by FBI agents about them.
The charges also include various fraud counts, embezzlement of public funds and conspiracy to defraud the government.
That may seem daunting. But one plus for the congressman is that many of the witnesses needed to prove the alleged crimes are his friends and longtime political supporters, and they may be less than damning in the way they describe events. Some of the key charges, including the obstruction count, also could come down largely to Rostenkowski’s word versus that of a single accuser.
Once he assembles a defense team, his attorneys are likely to hammer away at the idea that some of the alleged offenses seem petty and happened years ago.
These are critical elements, because in rejecting a proposed plea bargain last week-in which he could have pleaded guilty to just one count and served 6 months in jail-Rostenkowski has turned the trial into an all-or-nothing gamble.
To fare better than he would have under the deal, Rostenkowski will have to keep the jury from convicting him on even one or two of the 17 counts. That’s one of the reasons Bennett recommended he take the plea.
And to win acquittal on all charges, the lawyers said, he will have to overwhelm the jury with his sense of aggrievement and persuade it that he is not a greedy fat cat but a sympathetic underdog who has been hounded by the government.
“Get thee to the jury, Rosty,” said Thomas Scorza, a former assistant U.S. attorney in Chicago and now a lecturer at the University of Chicago Law School. “The only place in the system where the discretion is left unfettered is with the jury.”
But the importance of his testimony, despite the risks of opening himself to aggressive prosecutors, goes beyond the jury box. Although juries can discount a refusal to take the stand, the public will expect Rostenkowski to declare his innocence in court.
“If you’re doing it for public posture, how do you sit there and not testify?” Sklarsky said. “People think if you don’t get up there and deny the allegations, you must be guilty of them.”
Looking ahead to the trial, a bigger question is whether Rostenkowski and his lawyers will try to use the argument that his supporters have been making in the press-that he is a victim of changing standards of ethical behavior.
Another possible argument, designed to win jury sympathy, is that the government is being petty by trying to nail a politician for taking seemingly small amounts. That’s a tough argument to make.
In Chicago, politicians-from aldermen to judges-have long been willing to break the law for a little change, and juries have been willing to convict them. That was particularly evident in Operation Greylord, which involved judicial corruption, as well as the investigation of corruption in the Chicago City Council.
“With virtually every alderman, it was almost always less than $1,000 to do things that are clearly felonies and will cost you your career, if caught,” said one former federal prosecutor in Chicago. “It’s hard for a lot of us to understand. If you run the risk, why not make it worthwhile?”