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'Hardball with Chris Matthews' for Tuesday, August 17th, 2010

Read the transcript to the Tuesday show

Guest Host: Michael Smerconish

Guests: John Yang, Donna Marsh O‘Connor, Tim Brown, Lynn Sweet, Todd Harris, Steve McMahon

MICHAEL SMERCONISH, GUEST HOST:  Is there a consensus among 9/11 victim family members about that mosque?

Let‘s play HARDBALL.

Good evening.  I‘m Michael Smerconish in New York for Chris Matthews.  Leading off tonight: Sense and sensitivity.  Critics of the contemplated mosque near Ground Zero say it shouldn‘t be built out of respect to those who lost friends and loved ones on September 11.  But are 9/11 family members of one mind when it comes to the mosque?  We‘ll hear from two people who lost loved ones in the attacks, and they‘re on opposite sides of that issue.

Plus, the mosque controversy has given Republicans what they hope is a hot button issue to run on in November.  It may drive the base, but does it run the risk of taking the party off a more universally appealing message about the economy?  Our strategists tackle that one.

Also, President Obama may be making good on that campaign promise to change Washington.  He‘s getting a lot of flak for supporting the right to build the mosque near Ground Zero.  But this could be an example of a president standing up for what he thinks is right and not simply taking the most politically convenient stand, even if it costs him a second term.

Plus, this morning‘s “New York Times” carried this troubling headline, “In bold display, Taliban orders stoning deaths.”  It‘s a story about how the Taliban executed a young couple who eloped and it demonstrates the Taliban‘s newfound strength in Afghanistan.  It could have big implications for our mission there.

And finally, I‘ll have some thoughts about President Obama loosening travel restrictions with Cuba and why he needs to do more.

Let‘s begin with the debate over the mosque near Ground Zero.  Donna Marsh O‘Connor is a member of the September 11 Families for Peaceful Tomorrows.  She lost her daughter on September 11.

Please accept our condolences.  As a matter of fact, tell me a bit about your daughter, if you would.

DONNA MARSH O‘CONNOR, LOST DAUGHTER IN 9/11 ATTACKS:  Thank you, Michael.  My daughter was absolutely beautiful.  She was so proud and so in love with the World Trade Center.  She loved those buildings.  She was born in 1971, and I, you know, think it is really heartbreaking that they went up and down at the same time.  She was also four months pregnant.  She was my son James‘s best friend on earth.  He was 14 at the time of her death.  And I miss her profoundly every day.

SMERCONISH:  I think there‘s a tendency by those of us on the outside looking in, looking at the 9/11 victim family members, to assume that there‘s a consensus, that there‘s almost near unanimity of thought in opposition to constructing that mosque at Ground Zero.  What is your assessment as to what the sense (ph) of opinion might be?

O‘CONNOR:  Well, there is absolutely no unanimous voice.  There‘s no monolithic 9/11 family group that speaks to every single issue.  The thing that binds us is that on that morning, we left loved ones in that ash.  I will never forget that—you know, that bound (ph), you know, circumstance.  But short of that, you know, 3,000 American people—why would anyone think that 3,000 American people would share the same mindset on any particular issue?

SMERCONISH:  Ms. O‘Connor, what‘s your assessment of the president‘s statements last weekend, both Friday night and Saturday morning?

O‘CONNOR:  I was really profoundly happy, finally, to have a leader, a political leader be the leader of our nation.  I was as pleased to hear Barack Obama speak in favor of the cultural center as I was to hear Mayor Bloomberg speak in favor of the cultural center, and particularly framed in the way they framed it.  This is American principle and American valuing.  This is how we do it.  It‘s what we stand for.  It is a nation that welcomes those who have been persecuted for their religious beliefs and practices.  We shouldn‘t be doing that.

SMERCONISH:  There‘s a statement that‘s been issued by 9/11 Families for a Safe and Strong America that I‘d like to put on the screen and ask you to react to, as well.  Their press release said, “This controversy is not about religious freedom.  9/11 was more than a deeply traumatic event, it was an act of war.  Building a 15-story mosque at Ground Zero is a deliberately provocative act that will precipitate more bloodshed in the name of Allah.  Those who continue to target and kill American civilians and U.S. troops will see it as a symbol of their historic progress at the site of their most bloody victory.”

Your reaction is what?

O‘CONNOR:  My reaction is that sounds like an act of war.  Criminals murdered our family members on 9/11, 19 hijackers, criminals.  To declare, you know, this in those terms is inflammatory.  In fact, this is a cultural center that has been proposed in order to, you know, bring cultural peace and understanding.  These are moderate Muslim people.

At what point do we, you know, sort of look at some of those statements and say, you know, the rhetoric is really inflated here?  Do we want an America that constantly goes into rhetorical battle mode?  I know that after 9/11, you know, I saw this nation polarized in deeply divisive ways.  It‘s not just that I want back an America that valued civil liberty, it‘s that I want back an America that, you know, engages in civil discourse.

We—September 11 Families for Peaceful Tomorrows have been around since February of 2002.  You know, in America, the polls showed that very few Americans wanted to go to war with Iraq.  We still went to war with Iraq.  Our group was there speaking out, saying, Please don‘t do this in the name of our family members.  And you know—

SMERCONISH:  I‘m happy to give you the platform tonight so that folks understand that there is a difference of opinion within 9/11 family members.

O‘CONNOR:  And I think that is why we are here speaking now because we want, if nothing else, to say, you know, our position, our perspective has been obliterated by the monolithic voice of 9/11 family members by politicians on both sides of the aisle.

SMERCONISH:  Understood.  Donna Marsh O‘Connor, again, our condolences on the passing of your daughter on September 11.

O‘CONNOR:  Thank you.

SMERCONISH:  Thank you.

Retired New York City firefighter Tim Brown was a 9/11 first responder at the World Trade Center.  He lost 93 friends and colleagues in the attack.  First of all, thank you for your service—

TIM BROWN, 9/11 RESPONDER:  Thank you.

SMERCONISH:  -- and our condolences on the passing of so many of your friends.  React to what you just heard, please.

BROWN:  Thanks, Michael.  First and foremost, I want to tell Donna how sorry I am for her loss.  And as a fireman, you know, we tried to save as many people as we could, and I‘m personally sorry that we could not get to her daughter, and her daughter‘s child because she was pregnant.  We share a sacred bond, even though we disagree, and I appreciate her side of things.

SMERCONISH:  She says the Constitution has served this country well for 200-plus years—

BROWN:  Absolutely.

SMERCONISH:  -- that we‘ve adhered to the rule of law, and in line with that thinking, has no problem with the mosque moving the forward.  Your response is what?

BROWN:  Right.  Well, the U.S. Constitution is the opposite of what Imam Rauf believes.  Imam Rauf believes in Sharia law.  He does not believe in freedom of religion.  He does not believe in equality of religion.  He doesn‘t believe in equality among all people before the eyes of the law.  So he‘s pushing something that is opposite of the U.S. Constitution.

SMERCONISH:  Tim, what‘s the basis for that statement?  Because I don‘t know what to believe.  I hear different things.  I hear that this is an example of moderate Islam.  I hear that this is an organization—

BROWN:  Right.

SMERCONISH:  -- that ought to be supported.  And then at the other end of the extreme, I hear that there have been some statements uttered by some of the organizers in the past that are themselves suspect.

BROWN:  Absolutely.  And we are—you know, I debated the imam twice months ago, and he lied to me about several things.  They would never tell us where the money came from.  They still haven‘t to this day told us where the $1.85 million in cash came from.  This imam will not denounce Hamas as a terrorist organization.  We have tied him to two—three unindicted conspirators, organizations that are co-conspirators in the 2008 Holy Land Foundation terrorism trial that sent $12 million to Hamas.

SMERCONISH:  Tim, apologies for giving you the short shift—

BROWN:  No problem.

SMERCONISH:  -- but I‘ve just been told there‘s a verdict in the trial of former Illinois governor Rod Blagojevich.  The former governor is at the courthouse, and now we‘re all waiting to see, you know, what has the jury decided.  There are signs they could be deadlocked on many of the 24 counts against Blagojevich, and we‘re going to be back with the latest from Chicago right after this.

You‘re watching HARDBALL, only on MSNBC.


SMERCONISH:  We have breaking news.  We‘ve just been advised there is a verdict in the Rod Blagojevich trial.  We‘ll be going to the federal courthouse in Chicago, joining John Yang and a special group of guests on this breaking news.  The Blagojevich verdict is in.  We‘ll bring it to you within minutes.

You‘re watching HARDBALL, only on MSNBC.


SMERCONISH:  Breaking news.  There‘s a verdict in the Rod Blagojevich corruption trial.  The former Illinois governor is at the courthouse, and we‘re moments away from finding out what the jury has decided about those 24 counts against him.

NBC‘s John Yang is outside the federal courthouse in Chicago.  Lynn Sweet of “The Chicago Sun-Times” joins us from Washington.

John, what do we know?

JOHN YANG, NBC CORRESPONDENT:  Michael, the Blagojevich‘s‘ attorneys, the judge, the media, lots of spectators are all in the courtroom on the 25th floor of the Dirksen federal courthouse here in downtown Chicago.  We are awaiting for them to read the verdict, to hand the verdict to the judge and the jury to announce the verdict.  They told the judge just about a half hour ago or an hour ago that they had reached a verdict.

We know the last time we heard from the jury was in—on last week, they said they had reached an unanimous verdict on just 2 of the 24 counts.  They said they could not reach agreement on 11 of those counts and that they had not yet voted on 11 others.  Now, those 11 others are wire fraud counts.  Those are phone calls.  In order for those phone calls to be a crime, they had to vote that other activities were a crime.

LYNN SWEET, “CHICAGO SUN-TIMES”:  OK, I need to be introduced at some point.

YANG:  So that could explain why—why that—


YANG:  I‘m sorry, is Lynn trying to talk here?  Why that—those words—

SWEET:  Oh, no, no, no.  I‘m so sorry.

YANG:  -- those counts may not be able to—may not be able to be reached.  But we‘re still waiting.  And earlier today, the jury asked the judge how to answer, how to fill out the verdict form, how to fill out this verdict form in case they couldn‘t reach a unanimous verdict on some of the counts.  So that is a fairly good indication that we are going to have a deadlock on some of the counts, a mistrial declared on some of the counts.  And we‘re sort of waiting to hear what the—what they are.

On those two counts on which they said they had reached a verdict, we don‘t know which counts they were.  We don‘t know which way they went.  The counts, of course, cover racketeering, conspiracy, extortion, bribery.  They cover all sorts of activities in the governor‘s office.  Of course, the big notable one is the Senate seat.  They say that—the prosecutors allege that he was trying to sell the—essentially, sell the Senate seat that Barack Obama, President Obama, had occupied and was about to give up when he was elected—elected president.


YANG:  But there are other counts, as well, that he tried—

SMERCONISH:  John, we‘re all trying to—

YANG:  -- exchange—

SMERCONISH:  We‘re all trying to read the tea leaves and—

YANG:  I‘m sorry?

SMERCONISH:  I said we‘re all trying to read the tea leaves in this, and soon we will know the outcome.  But there‘s something that mystifies me, as an attorney.  I‘m well familiar with jurors who need instruction on how to fill out a verdict form.  I have never heard of a jury that requires some additional instruction about the oath that they were administered.  And correct me if I‘m wrong, but that was one of the two questions that came from that jury when we last heard from them.  What, if anything, do you know on that issue?

YANG:  That‘s exactly right.  And it is—it remains a mystery to all of us, exactly what they wanted to know and why they wanted that oath.  That oath, of course, says that they are—will reach a verdict based on the law and the evidence.  There‘s some speculation among some of the lawyers here at the federal courthouse that there was at least one juror who was not voting, that perhaps they wanted—the other jurors wanted to have the oath in front of them to show this juror, or jurors if there were more than one, that they had to participate, they had to deliberate, they had to vote.  Now, this is all speculation, but it was one of the more curious requests from a jury—

SMERCONISH:  I mean, that would seem—

YANG:  -- that they—that they wanted a copy—

SMERCONISH:  That would seem to be—

YANG:  -- of the oath.

SMERCONISH:  That would seem to be, if there is an obvious answer, that they wanted to use it to admonish one of more of the jurors, that the fellow jurors wanted to be able to say, Hey, you know, look, here‘s the oath that we were administered, and this is what you are obligated to do.

One other observation for John Yang, if I may.  Soon we‘re going to find out if that legal strategy of Rod Blagojevich not testifying was foolish or was genius because, as you well know, in the opening statements, there were promises made to the jurors that they would hear from him.  And then ultimately—and he‘s been telling the world that he was anxious to tell his story.  But ultimately, he did not testify, as he has a 5th Amendment right to do.  He did not testify in his own behalf.

YANG:  That‘s exactly right.  And all along, you know, people have been saying that Blagojevich‘s defense team was outclassed.  This is not a defense team—three lawyers—Sam Adam, Jr., Sam Adam, Sr., a father-son team, and Sheldon Sorosky—who are used to arguing in federal court.  They‘re more used to the Cook County criminal courts building.  And there was sort of a stylistic clash.  The judge had to admonish Sam Adam, Jr., a number of times for his style of cross-examination, his style in the courtroom.

And everyone thought that this was going to be a slam dunk, or a lot of people thought this was going to be a slam dunk for the prosecution because of the sort of mismatch or what was perceived to be a mismatch of legal talent between these—the federal prosecutors and the defense team.

SMERCONISH:  Sometimes—

YANG:  But now—

SMERCONISH:  Sometimes that‘s a strategy.  Sometimes that is a strategy in and of itself, you know, to bring in the country bumpkin as your defense counsel and to therein solicit some—some sympathy from the jurors.

Hey, John, stay with us, please, if you can.  I want to bring in Lynn Sweet of “The Chicago Sun-Times.”  Lynn also writes for  Lynn, soon we will find out whether “Celebrity Apprentice,” whether all the interviews, whether every talk radio host who wanted to interview him and got to interview him—whether that strategy from Governor Blagojevich is paying off.

SWEET:  Well, absolutely.  You know, Mike, this is a story that is—you know, that started that morning in December 2009, when Rod Blagojevich was woken up at his home and came outside to be taken into custody in his running suit.  And ever since then, it has been a non-stop, in a sense, traveling tailgate party from the “Celebrity Apprentice”—he wrote a memoir.  He‘s done Elvis impersonations along the way.  His wife, Patti, who was not indicted, but certainly, her came up as a potential recipient of money that was slipped to her on the side—you know, she ate bugs on a “Survivor” show.

So the thought was, throughout this whole long saga, that Blagojevich could somehow get to a juror (ph) to persuade them that he might be goofy and he might be a blowhard, or as his own attorney said, he wasn‘t the sharpest knife in the drawer, but he‘s not guilty of what the government said he was.

SMERCONISH:  I mean, I wonder if it were all a concerted strategy.  Dare I say I watched “Celebrity Apprentice” when he was on, and I remember the night that he couldn‘t turn on a laptop. 

SWEET:  Well, he—that—you know, if—if—one thing the public might be convinced of is that the guy is hapless. 


SWEET:  And one of the—you know, there are two counts here of where he lied to agents.  And, my God, Mike, these are things where if he would have just said yes, he wouldn‘t have been in trouble.  One of them was that he tried—he told the agents that he tried to maintain a firewall between politics and government. 

Well, you don‘t have to.  He could have say, no, I don‘t.  It‘s perfectly legitimate.  Politicians help out in their fund-raising all the time.  And then he said that he doesn‘t know or want to know who contributes to him.  Perfectly legal to know that. 


SMERCONISH:  Here‘s another observation.  John Yang just gave us the skinny from Chicago as best anybody could know. 

I think it‘s safe to say that one thing is a certainty.  And that is Rod Blagojevich is not about to be convicted on 24 counts. 

SWEET:  Well, I—I‘m not—it‘s too close to the final score here to make any predictions. 

But what we know is this was a trial.  We‘re in day 43 of the trial, day 14 of deliberations.  So, the deliberations were half again as long as the trial.  So, that meant that for the slam dunk that you had been talking about, it clearly wasn‘t that. 

Clearly, the defense strategy, to plant seeds of doubt, that we know worked.  But this—you don‘t get credit in a case for almost.  I mean, if you‘re the defendant, I don‘t know if it does your soul good to know that the jury wrestled 14 days or four hours if they‘re going to find you guilt.

But what we know is that the legal strategy of not having any defense at all in the Blagojevich case was also balanced with the prosecution, Mike, that cut its case short. 

SMERCONISH:  Well, I read some interviews recently with some of the lawyers who were involved in the Governor Ryan prosecution.  And they made the point that that jury was also out for a long time.  And then they came back and they slammed him.  So—

SWEET:  Well, they did.  And that was a much simpler case.  But later on some of those jurors said that they regretted—I think they had some second thoughts about that decision. 

And that case was a lot different.  I think what‘s hard in a case like this is that the charges include conspiracy to commit a crime and attempted extortion.  That‘s a lot harder to I think get—get an answer on. 

SMERCONISH:  Well, the big charge is that he was in the process of selling the Obama Senate seat. 

And I read a lot of on-the-street interviews with folks who are readers of your column and your newspaper in Chicago, much closer to this than I, who seem to say, yes, but in the end he didn‘t do that. 

SWEET:  He didn‘t.

Now, the more serious charges have to do—and I‘m looking at some of the jury instructions—you know, trying to shake down the executive of the Children Memorial Hospital in exchange for campaign contributions, trying to shake down Rahm Emanuel to get his super agent Hollywood brother, Ari, to do a fund-raiser for him. 

These are also charges that were never as sensational in the run-up to the trial because the selling of Barack Obama‘s Senate seat was just so gripping and -- 


SWEET: -- to everyone.


SMERCONISH:  But they‘re bread and butter, and they‘re more easily able to be prosecuted. 

Lynn Sweet, please go nowhere. 

John Yang, hang with us. 

We‘re going to continue to watch what happens at the federal courthouse in Chicago as we await the reading of the verdict in the Rod Blagojevich corruption trial. 

When we return, we will get back to our top story and the politics of the Ground Zero mosque.  We are going to cover it all.  We will get into the issue of whether Republicans may be overreaching as they seek to make it a wedge issue for the midterms.

HARDBALL returns right after this. 


SMERCONISH:  Welcome back to HARDBALL. 

Todd Harris and Steve McMahon are joining me now. 

Men, you‘re here to talk politics.  We had a laundry list of things to get to, but at the top of the list now, Rod Blagojevich.  What do you make of the news coming out of Chicago that the verdict is in and soon we will know the outcome?

Let me start with Todd. 

TODD HARRIS, REPUBLICAN STRATEGIST:  Well, Mike, it reminds me of the 2006 midterm elections, where it seems every time I turned a corner there was more and more bad news for the Republican Party.  There were more and more stories, scandals, things that were breaking that were making voters turn against the Republican Party. 

And now it‘s deja vu all over again for the Democrats.  I really feel like this cycle, whether it‘s—I know we‘re going to be talking about the mosque, but Blagojevich—

SMERCONISH:  But do you look at this—do you look at this story in partisan terms?  Do you look at this as a story about a Democrat who is jammed up?  Certainly, he is.  I think he almost transcends the R‘s and the D‘s. 

By the way, men, the jury has just entered the courtroom.  So, we‘re within, we hope, seconds, if not minutes, from knowing the outcome. 

But, Todd, is that how you regard this?  You think this is a blemish for Democrats? 

HARRIS:  Well, certainly, his—his insanity transcends partisanship.

But, look, there‘s no—there‘s no question he was the Democratic governor of a major state and he tried to auction off President Obama‘s old Senate seat.  There‘s no question that that is going to add a certain level of stink to Democrats.

SMERCONISH:  Steve McMahon, is it part of the whole corrupt Chicago image and so forth? 


I think this is a victory not for Republicans, but probably for cable television, because what‘s going to happen now is he‘s almost certainly going to get some kind of a mixed verdict, which means there‘s either going to be a retrial or there‘s going to be an appeal. 

And in the meantime, I‘m sure Governor Blagojevich will go out and try to earn money however he can, which is probably by being a carnival barker on cable television and just doing what we have seen for the last year.  This isn‘t a partisan thing.


SMERCONISH:  I think the cheering that you hear is coming from the imam who wants to build the mosque in Lower Manhattan—


SMERCONISH: -- because just in the same way that the mosque dumped Dr.  Laura for her N-word tirade off the pages of the newspaper, all of a sudden, the mosque becomes secondary to Blagojevich. 

Gentlemen, I have got to go to John Yang, the NBC reporter in Chicago. 

Stick with me.

John, go ahead, sir. 

YANG:  OK.  Yes. 

SMERCONISH:  Hi, John.  What do we know? 

YANG:  Michael, there is only one unanimous verdict out of the 24 in the indictment. 


YANG:  It is lying to the FBI.  It is—

SMERCONISH:  Perjury. 

YANG:  It is—it is saying that in an interview to the FBI, Rod Blagojevich said he maintained a firewall between politics and government, that he did not track or know who contributed to him to how much they contributed.

On the 23 other counts, on racketeering, on conspiracy, on extortion, on bribery, they could not reach a unanimous verdict.  This one count carries with it a maximum of five years in prison in and $250,000 fine. 

But that is a far cry from the much heavier charges that the federal government brought, a far cry from the political corruption crime spree that U.S. attorney Patrick Fitzgerald talked about that morning that Rod Blagojevich—Rod Blagojevich was led out of his house in handcuffs. 

So now it‘s going to be up to the government to determine whether they want to retry him on some of those bigger counts.  They will undoubtedly try to find out what the division was on the jury, try to talk to some of the jurors to find out why they could not prove their case that he was carrying out a political corruption crime spree that would make Abraham Lincoln spin in his grave, as Patrick Fitzgerald said. 

SMERCONISH:  So, they could not—they could not reach unanimity on 23 of the 24.  And the one that they have convicted him on sounds to me like it‘s a perjury conviction, which is subject to five years imprisonment and a $250,000 fine, by any assessment, a huge setback and loss for the prosecution in this case and an enormous victory for Rod Blagojevich. 

And, John, you have to think that when we know more from these jurors, cost will enter into the decision-making process for the federal prosecutors.  You have got to believe that one of the arguments that will be raised by the defense lawyers and by the community is what‘s to be gained by going back and having another exhaustive trial of Rod Blagojevich if on 23 of the 24 they couldn‘t reach unanimity, unless you‘ve got a rogue juror, unless we find out that there was just one individual who wouldn‘t go along, hence the question earlier today about the oath. 

YANG:  That‘s exactly right, Michael. 

We need to find out or they—the prosecution certainly will want to find out what the division was.  Now, the indications were from this jury when they said they had gone beyond all reasonable attempts to reach a unanimous verdict, they said that last week, and from the other communications, a lot of the analysts were saying it sounded like this was a deeply divided jury, that it was not just one rogue, lone juror, that it was perhaps as many as six, you know, a six-six division. 


YANG:  But, of course, that again is speculation.  We‘re going to have to wait to hear from the jurors to hear what the division was. 

But, as you say, this has got to be a huge disappointment for the prosecution and also quite frankly for Patrick Fitzgerald, the U.S.  attorney, who had really had a number of high-profile prosecutions and high-profile victories—

SMERCONISH:  Successes.

YANG: -- including Governor George Ryan and also in the Valerie Plame case with Scooter Libby, the—Vice President Cheney‘s chief of staff.  And now he bring this is case and on 23 of the 24 counts, there‘s a mistrial. 

SMERCONISH:  Hey, John Yang, what do we know about the reaction of Rod Blagojevich and his wife, if anything? 

YANG:  We are still—I am still trying to—Michael, trying to go through some—these e-mails and other text messages I‘m getting from our producers in the—in the courtroom.  I can only imagine that it is—

SMERCONISH:  Jubilation. 

YANG:  That it‘s got to be. 

You know, earlier today, when the jury came out, when the jury sent its note about how do we handle a split verdict, how do we—can you send us the oath, the judge first talked about that to the lawyers in private.  And then they came into the courtroom. 

The defense team was beaming when they came in.  The prosecution looked pretty grim.  So, I think that—and, actually, ever since they got that first note from the jury that said that they had—that they were—asking what to do if they could not reach unanimous agreement on any of the counts, the defense team has been very upbeat, very optimistic.  And it turns out they had reason to be optimistic, as the -- 


SMERCONISH:  So, you would think—you would think that the strategy

and recall, John—and I know you certainly do, but I want to make sure that we remind all our viewers—recall that within the Blagojevich defense ranks, this father and son duo, at least the way in which it was presented to the public was that there was disagreement between father and son. 

One of them wanted him to testify and the other didn‘t want him to testify.  And whereas in the opening statement they had said that he would testify, and Rod Blagojevich on every forum that he was offered would say, I can‘t wait to tell my story, when push came to shove, he exercised his Fifth Amendment right and he did not testify. 

Now it looks like that was genius. 


YANG:  That‘s right.  It was a father/son disagreement.  The father felt from the beginning, from the day the government rested its case, Sam Adam Sr., a 50-year veteran of the courtroom, came out and said the government has not proved its case. 

He immediately started talking about the possibility of not presenting a defense at all.  Sam Jr., who had made the opening statement, had promised that Blagojevich would testify, I think felt some personal credibility issues, that he wanted Blagojevich on the stand to fulfill that promise. 

I also think he felt that Blagojevich would be a convincing witness.  But there was a father/son disagreement, as you said, that the old man won, and the young toad lost, as he put it. 


YANG:  And it does now prove that he was right, that the—the government did not—in the view of this jury, the government did not prove its case on the major charges, on racketeering, on conspiracy, extortion, bribery. 

And they only came back on the—in many ways, the lightest charge, lying to the FBI. 

SMERCONISH:  John Yang, please—

YANG:  And, by the way, I‘m being told from—from the courtroom very quickly, Michael, that Blagojevich has had no emotional reaction yet, that Blagojevich seems to be pretty stoic in the courtroom as he—as he heard that verdict of only one count, one guilty count against him. 

SMERCONISH:  John Yang, get caught up on the BlackBerry, so that you can tell us exactly what‘s going on inside that federal courtroom in Chicago while I chat again with Lynn Sweet from “The Chicago Sun-Times.” 

Lynn, this guy may have nine lives. 

SWEET:  He may.  And wasn‘t I just telling you a few minutes ago about these two charges of making these false statements?


SWEET:  So, Michael, he‘s convicted on the one thing he could have told the truth on and not been in trouble, because it‘s OK for political figures to know about their fund-raising. 

It is a remarkable outcome.  I‘m not surprised at all by this.  The government never able—was never able to show, what were the consequences of his actions? 


SWEET:  And I think—I‘m guessing that—


SWEET: -- an impact.

SMERCONISH:  How many times have we seen public figures get jammed up in the way in which they handle a situation, as opposed to the under—I mean, it‘s very Watergate-ish, maybe, in terms of it‘s not the underlying conduct.  It‘s the way in which he responded to it.


SWEET:  Right.  And this one is—you have just nailed a very good point here, and I hope people appreciate it, of the many ironies here.

Here‘s another thing, I‘m guessing.


SMERCONISH:  By the way, the judge is declaring a mistrial on all other counts, those 23 counts.  Just trying to keep everybody in the loop. 

Go ahead.

SWEET:  Well, there we go.  So, Rod has a good day today.  We don‘t know and we won‘t know for a while—or maybe we will know what the government planned to do, if they want to go after him again. 

But here‘s the point I want to make on the false statement that he made, besides the fact that he did not have to. 


SWEET:  It‘s just the irony of ironies.  He did not have to lie.  He could have told the truth, because he was engaged in perfectly legal behavior in fund-raising.

SMERCONISH:  So, he panicked in his reportage to the FBI, it sounds like.  And—


SWEET:  Whether or not—here‘s another thing.


SWEET:  We heard and the jurors heard all these tapes of Rod saying this and that.  We know he‘s foul-mouthed.  We know who he liked and didn‘t like. 

The FBI does not make tapes of their interviews, doesn‘t it?  So, if you‘re a jury, you might say, now, isn‘t this interesting?  We have recordings, very clear, crisp recordings of Rod Blagojevich on his phone with his brother and associates.

SMERCONISH:  But we don‘t know the rest of it. 

SWEET:  But when we have this interview, it‘s just an agent‘s note. 

SMERCONISH:  Right.  Sit tight, if you will. 

Back to John Yang, NBC‘s reporter at the Chicago federal courthouse. 

John, what else do you know about the Blagojevich verdict? 

YANG:  Michael, the jury—the prosecution in the court did say that they absolutely—that‘s the word that the prosecutors use—absolutely intend to retry Blagojevich on these charges, on the 23 charges on which there‘s now been a mistrial. 

Court is adjourned.  They are moving out of the courtroom.  And I fully expect Rod Blagojevich to come down to the lobby and talk to reporters and talk to cameras. 

SMERCONISH:  Well, we‘re not going to—we‘re not going to want to miss that.  And, John, as a lawyer, I can tell you that passion gets to attorneys as well, and the fact that the prosecution may have had that instantaneous reaction, they have not yet heard from the court of public opinion, meaning taxpayers, who may not want to fund the bill of a retrial on those 23 counts. 

YANG:  That‘s exactly right, Michael. 

And as I—I think they need to talk to the jury, too, to try to figure out how deep the division was.  Was it just one holdout?  Was it a large—was it a deeply split jury?  Did they not make the sale at all?  Why didn‘t they make the sell? 

And I think there‘s a lot of—a lot that has got to go into that.  But I can understand the immediate reaction.  I mean, this has been a long investigation on the government‘s part for years.  They have had wiretaps.  They have had—been trying to—been looking into his doings as governor for years and years.  And clearly they don‘t want to give this case up. 

SMERCONISH:  Right.  But, in the end, where‘s the beef?  I think it‘s probably a combination of the lack of money having changed hands and what Lynn Sweet said. 

I mean, Lynn, you say maybe the jury bought into him as a hapless individual, kind of a goofy guy that you almost take pity on. 

SWEET:  Well, the selling-of-the-Senate-seat charge, the most sensational, had him with all kinds of schemes.  And if you knew anything about politics, you knew it was unrealistic, as if anybody in the Obama team was going to appoint him to anything, much less a Cabinet post. 

So, he was—he was sort of fantasizer.  You have somebody who is that presumably out of touch with reality—maybe that bought him some goodwill with the jury.  I mean, we‘ll know more with the jury interviews and this speculation.

But the selling of the Senate seat charge which took up so much time even during the trial and dragging Rahm Emanuel, Valerie Jarrett was subpoenaed.  She never ended up testifying.  We learned some things, you know, politically about the inner workings of some of Obama team at the time of his election.  But in the end, maybe because he was so fantastical in his dreams of bartering this appointment that people thought he was so over the top, how he could possibly even execute this game.

SMERCONISH:  What do you make of John Yang‘s reports that the word from Patrick Fitzgerald‘s folks in that courthouse is that they absolutely will retry on the 23 counts that were deadlocked and now subject to the mistrial.

SWEET:  Well, I take them at their word.  They could change their mind as time goes on.  But, see, they have unlimited resources.  I know you brought up the idea if taxpayers want to pay for it.  You know, you don‘t get to vote.

The issue is whether or not that puts pressure on the defendant, which is in generally.  If they want to plea bargain, maybe there‘s lesser charges, you know, there‘s all kinds of variations now of this theme that could go on in order for Rod to make—to have the case go away.  Both in any event, both sides are smarter if there is a retrial.  Both know the plus and minuses of what worked.

SMERCONISH:  But what motive—what motivation would Rod Blagojevich have at this juncture?  A major victory, 23 of 24 they didn‘t get him on.  Maybe that‘s inartfully said—what motivation would he have to negotiate a plea?  And I know we‘re both just speculating as to what might come.

SWEET:  The motivation is, in all due respect to the late Dan Rostenkowski, who‘s funeral is today and who I said this with respect in his funeral.  He made a plea bargain to two lesser counts if what he was charged with in order to just serve his time, pay his fine, and get it out of his way.  He stood on the steps of the federal courthouse here on the day he pledged, saying he was incident.

Sometimes people who don‘t—Rod Blagojevich is out of money.  The defense is very expensive.  If he‘s facing some time anyway, you know, maybe at a point you just say, I will make a deal to avoid this and move on with your life.

SMERCONISH:  Lynn Sweet, please—

SWEET:  This is wild speculation right now.  We don‘t know the details of what the jurors know, which will inform us a lot more.

SMERCONISH:  Lynn Sweet from “The Chicago Sun-Times,” don‘t go anywhere.  John Yang, we still have NBC‘s great reporter at the federal courthouse in Chicago.

You‘re watching MSNBC‘s coverage of the verdict.  It has just come in in the Blagojevich trial.  It‘s a major victory for Rod Blagojevich, 24 counts, one conviction.

We‘ll come back to HARDBALL in just a moment.


SMERCONISH:  Welcome back to HARDBALL.

We‘re dealing with breaking news this hour.  The Rod Blagojevich trial is over.  He was charged with 24 counts—he, the former governor of Illinois—a conviction on just one of the 24 counts.  On the other 23, the jury could not reach a unanimous verdict, and a mistrial has been declared for those 23 counts.

John Yang is with us from the Chicago federal courthouse reporting on this trial.  Lynn Sweet from “The Chicago Sun-Times” will rejoin us in just a moment.

I‘m told, John, that we‘re looking forward perhaps to lawyers for both sides speaking, including U.S. Attorney Patrick Fitzgerald, maybe Rod Blagojevich himself.

YANG:  That‘s right, Michael.

Rod Blagojevich, of course, has been free on bond throughout this period, during the trial.  And, of course, he still remains an accused criminal because of the mistrial, because of the lack of unanimous verdict on those 23 counts.

He will remain free on bonds.  He‘ll remain a free man.  We do expect his lawyers to come down and speak to reporters and perhaps Rod Blagojevich himself.

Now, it‘s interesting.  When this trial—jury deliberations began, the U.S. Attorney‘s Office told us that I think within 90 minutes of a verdict, there would be a big press conference in a conference room on the 11th floor of the Dirksen Federal Courthouse where the entire prosecution team would talk, would hold a press conference and talk to us.

Well, we‘re now being told that big show has been canceled, that Patrick Fitzgerald will come down to the lobby and speak to the stakeout at some point.  It will be after the defense.  He‘ll allow the defense to go first.  Then he‘ll come down and speak to reporters.

But the grand show that the U.S. Attorney‘s Office had planned for, had been hoping for, and probably had anticipated, is not going to happen.  Instead, it will just be Patrick Fitzgerald coming down to talk—Michael.

SMERCONISH:  Was he in the courtroom?  Was he in the courtroom—he, Patrick Fitzgerald, at the time that—

YANG:  He was in the courtroom.  He was in the courtroom when the verdict was read.  He did not go into the courtroom during the trial.  There was an overflow room—a room where there speakers set up so you could hear the proceedings, for reporters who couldn‘t go into the room, for spectators who couldn‘t go into the room.

And during that time, Patrick Fitzgerald would slip in from time to time, sit in the back of the room, and I would see him taking copious notes listening to his assistant attorneys conduct cross—conduct examination of prosecution witnesses.  He was very involved in this, kept close tabs on what was going on.  But he never went into the courtroom itself.

SMERCONISH:  John, I can remember early on some of the pretrial posturing of this case where Rod Blagojevich was essentially challenging Patrick Fitzgerald to try the case himself.  In the end, and this is not unusual for U.S. attorneys, Patrick Fitzgerald did not try the case himself.

YANG:  That‘s right.  It was relegated or delegated it to some of his

top assistants.  It would have been interesting to see what would have

happened if Fitzgerald himself had been in the courtroom, if he had himself

conducted the prosecution—it would have been, I suspect, something of a

sort of a mano-a-mano showdown between Fitzgerald and Blagojevich given the



SMERCONISH:  One of the things—one of the things I‘m interested to see is the demeanor of Rod Blagojevich.  Your initial reportage was that he was somewhat stoic when he learned that, frankly, he had a successful day in court.  My hunch is that that father-son legal duo is right now cautioning him not to say too much to rub salt in the wounds of these prosecutors on the very tough for them is only to fuel their passion and make them want to have a retry on those 23 counts as they said.  In order words, t hey could seal his fate if he says the wrong thing in terms of a retrial in this case.

YANG:  That‘s a very good point, Michael, because, you know, after they made the decision not to have him testify—

SMERCONISH:  You know what?  We got—we got Robert Blagojevich.  Hang on, John.  Here‘s Robert Blagojevich right now speaking.  Pardon my interruption.

ROBERT BLAGOJEVICH, ROD BLAGOJEVICH‘S BROTHER:  He asked me to help him.  I said yes—just like I told you a year and a half (VIDEO BREAK).

REPORTER:  Any regrets?

BLAGOJEVICH:  Any regrets?  I don‘t look back.  I just look forward.

REPORTER:  Robert, when you agree to come in and help him, he and Patti had told you that they (INAUDIBLE) federal investigation (INAUDIBLE).

BLAGOJEVICH:  They did.  Yes.

REPORTER:  Do you at all feel like they were misled?

BLAGOJEVICH:  I don‘t think they—I don‘t think they intentionally misled me.  I think that‘s what they honestly believed, naively so.


BLAGOJEVICH:  I‘m sorry?

REPORTER:  Do you think your decision to testify is still the right decision?

BLAGOJEVICH:  Oh, absolutely.


BLAGOJEVICH:  I‘ve got a little practice under my belt now.

REPORTER:  Can you tell us what you saw in this jury that you felt good about?

SMERCONISH:  Here we go.  Now, we got him.

Hey, John Yang, remind us of how Robert Blagojevich fits into this whole story.

YANG:  Robert is Rod‘s older brother.  He came on—the two have not really had much to do with each other in their adult lives, they said they were joined (ph) as kids but they went their separate ways.  Robert into military, into business, and he came on to help his brother run the campaign fund.  He said he did it in hopes of repairing the relationship with his brother.  He did it in part to keep a death bed promise to their mother, that they would look out for each other.

SMERCONISH:  I now have defense lawyer—I have defense lawyer, Michael Ettinger, John, if you‘ll hang on with me one moment.

Here‘s Michael Ettinger, the defense lawyer.  Go ahead.

REPORTER:  Possibly could change some things up for the next trial. 

Does this change your strategy at all for approaching the next time around?

MICHAEL ETTINGER, DEFENSE LAWYER:  Well, yes, and we can change some things, too.

REPORTER:  Like what?

ETTINGER:  The certain witnesses that we might put on that we didn‘t this time.

REPORTER:  And you indicated that you were surprised before that you didn‘t hear, for example, from Jesse Jackson Jr. and he said, had you put on, there would have been people put on in response.

ETTINGER:  Correct.

REPORTER:  Congressman Jackson (INAUDIBLE)

ETTINGER:  You know what?  I have to discuss that with the governor‘s team and I don‘t want to make these decisions today.  We have to discuss it.  And it‘s certainly an option.


ETTINGER:  You know what?  It‘s not my place to comment on it.

REPORTER:  Michael, legally, to what extent are Rod Blagojevich, his interest, and Robert Blagojevich, his interest, (INAUDIBLE).  Do you understand what I mean?  In other words, we‘re waiting to hear what they are going to do before this pool of witnesses  that might be beneficial to your case.

ETTINGER:  And that doesn‘t mean that we will rely on them.  We‘ll make our own decision and if we think it‘s best for us to call those witnesses, we will.


ETTINGER:  Yes.  I‘ve had retrials before and they always change.


ETTINGER:  We‘re going to wait for you, the news media, to interview the jurors, see what they considered important, what they liked, what they didn‘t like about our case.  See what kind of—we have to ask the judge for permission to interview them.


ETTINGER:  You know what?  No, because they were poker faced basically during the whole trial and it wasn‘t any different when they came in.


ETTINGER:  Oh, a whole lot of questions but I don‘t think I should disclose that.  The government might be listening.

REPORTER:  And what were your emotions (INAUDIBLE)?

ETTINGER:  I expected this.  I was hoping for a not guilty.  I didn‘t think that at any time that they would find Robert guilty.  I was concerned about making sure that he was separate from his brother and got separate consideration and I don‘t know if that happened.


ETTINGER:  We‘re certainly going to explore that and find out and I think the—we‘ve got a lot of input from the jury at some point.

REPORTER:  What do you think the odds are of separating the two of them as defendants?

ETTINGER:  Well, the Judge Zagel denied that once.  I have to—I‘m going to talk to my partners and my client and make a decision.  It is top priority to determine that.

REPORTER:  Michael, how hard is a retrial?  Studies show that, you know, in a retrial, a guilty verdict is more (INAUDIBLE) than not.

ETTINGER:  Well, I don‘t agree with that, but I‘ve had retrials.  I‘ve had them where they are hung again.  And then, once again, our best input is going to be from the jury.


ETTINGER:  No.  No.  No.

I will say this.  As you—as you know, we were told that there was a verdict on two counts and then they only found one count.  So I don‘t know what happened in two days or three days.  I‘m surprised by that.


ETTINGER:  That could be.  That could be.  Obviously, there had to be.  And I don‘t—I can‘t pinpoint—when I think about more, I can probably pinpoint when that started.  That‘s important to me.

REPORTERS:  Thank you.

ETTINGER:  Thank you.


UNIDENTIFIED FEMALE:  Robert Blagojevich, the brother of Rod Blagojevich—

SMERCONISH:  Back to John Yang, we go outside the federal courthouse in Chicago.

John, I understand that Rod Blagojevich himself is still in the building, inside that courtroom.

YANG:  He is upstairs in the 25th floor, in the area around the courtroom.  He has not yet left the area.

According to the reporters, my colleagues, who are up there, the marshals are shooing everyone to the far end of that corridor to keep them away from where the room where Rod Blagojevich is now.  Inside the courtroom, the judge is talking to the jurors, asking them sort of probably no doubt thanking them for their service.

We‘re waiting to see if any of the jurors are willing to talk to reporters, at which point they will allow a pool camera, one camera, to go in.  Not live, but we would put that on tape and play it back later.  So, we‘re all sort of in a holding pattern here.

By the way, they have set the next court day for Rod Blagojevich for August 26th.  Presumably, there will be some—I‘m not sure if that would be sentencing or they‘ll be some sort of pre-sentencing motions and other activities.  He is guilty of one felony count of lying to the FBI.

SMERCONISH:  John, let‘s—in fact, let‘s just reset for the benefit of those who just tuned in.

There were 24 counts pending against Rod Blagojevich, one conviction for lying to federal investigators.  On 23, the jury could not reach a unanimous verdict.  Consequently, a mistrial was declared for those 23 counts.  By all accounts, a very successful day for Rod Blagojevich.

YANG:  That‘s exactly right, Michael.  And you know, it‘s not just his personal freedom that was at stake here.  If he had been found guilty of racketeering charges, the prosecutors were prepared to ask the court that they seize his asset—


YANG:  -- seize essentially the proceeds from the criminal activity, criminal enterprise, that they estimated to be around $400,000.  That would have put his house here in Chicago in jeopardy, his condo that he and Patti Blagojevich still have in Washington, D.C.  So, this is a big relief, no doubt, for Rod Blagojevich.  Although, he does have the specter of retrial or a new trial on those 23 other charges if the prosecution decides or does go ahead, as they say they plan to.

SMERCONISH:  John Yang, great reporting.  Thank you so much for keeping us abreast of what was going on.

And thank you to Lynn Sweet as well.

We‘ll be back in one hour at 7:00 Eastern for more HARDBALL.

Right now, it‘s time for “THE ED SHOW” with Jank Yuger (ph) in for Ed Schultz.




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