Why Michael Madigan hasn't yet been indicted

Friends ask: "Why hasn't Mike Madigan been indicted yet? After all, he has been under investigation for what must be a couple of years now."

My answer: It's because the federal prosecutor is not confident he can prove that the former Illinois House speaker personally did anything illegal.

I define public corruption as receiving unearned personal gain at taxpayer expense. There are obviously illegal forms of corruption – as well as "legal corruption." In the latter, there is political gain, but not provable personal gain.

Several decades ago, there was passionate debate in Springfield over Illinois ratification of the U.S. Equal Rights Amendment (an effort which then failed narrowly in Illinois). As the debate raged, in the state Capitol and within earshot of others, a woman baldly offered a legislator $500 or so if he would vote for the ERA Amendment. That is clearly an act of public corruption, and she was convicted for same, as I recall.

Similarly, Chicago Alderman Ed Burke has apparently been caught on a telephone wiretap saying he was holding up a needed city license until a small-time restaurant owner agreed to sign up with Burke's law firm for property tax appeal work. Again, if shown to be so in court, that represents seeking personal gain in return for releasing a license he controlled.

But, if no one gains personally, and there is never a communication between an official and a possible bribee about a quid pro quo, then where is the illegality?

Mike Madigan has been legend for decades in Springfield for never putting his fingerprints, or voiceprints, on anything. He doesn't use email or the phone; instead, he winks and nods, say some insiders, and you can't indict a guy for winking.

Nor has he apparently received any personal gain from governmental transactions. He hasn't had to, because he has made his millions heading a law firm that does property tax appeal work in Chicago – most big building owners sign up to be represented by Madigan.

This is a hallowed scam, you might say, in which assessors, some of whom have been handmaidens of Madigan, jack up city building assessments. Then a property tax law firm like Madigan's (There are half a dozen, all deeply connected to Chicago Dem politicos.) goes in and appeals for the property owner clients.

And voilà, the assessment is reduced to about where it should be. Everybody wins, you might say: Property owner gets a tax reduction, and an elected official/private attorney like Madigan "earns" a big fee outside government. All perfectly legal corruption.

But, has Madigan done anything actually illegal? I don't know, and I am guessing the U.S. attorney for the Northern District of Illinois doesn't know either – or worries he can't prove in court – that Madigan has done so.

To paraphrase an old saw about grand juries and their proclivity to indict: A criminal trial jury today would convict a ham sandwich if it wore a "Re-elect Mike Madigan" T-shirt. But, would such a conviction stand up on appeal today, in light of recent U.S. Supreme Court decisions that circumscribe the definition of what constitutes illegal public corruption?

Which gets us to the politics of U.S. attorneys in Chicago. They have a greater than 95 percent conviction rate over the years in public corruption cases. Many top elected officials, like our late Governor Jim Thompson, got their jumpstart in politics as corruption-busting U.S. attorneys, who put away lots of 'bad guys." Thus, a U.S. attorney hates to lose in court. It's not only embarrassing, but it dulls the luster on his or her career.

For the past couple of years, the U.S. attorney's phalanx of lawyers has been squeezing Madigan associates about what the speaker might have said, might have done. In that regard, I have a good friend who was "measured for a striped suit" (He did time.) as part of the conviction of former Illinois Governor George Ryan.

Friend said this about the grilling by prosecutors of politicos close to someone they are after: "They are brutal. They threaten to send you off to the slammer and throw away the key. They threaten your wife, your family. They scare you so bad you could understand if a person admitted to something that wasn't even true, if it would get the feds off his back."

So, will Madigan be indicted? I don't know. If he is, you can bet the U.S. attorney is confident he can convince a jury – and higher courts on appeal – that Mike Madigan is guilty of illegal corruption.

For many years, Jim Nowlan was a senior fellow and political science professor at the University of Illinois in Urbana-Champaign. He has worked for three unindicted governors and published a weekly newspaper in central Illinois.

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