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What's Next For Blagojevich Prosecutors?

CARRIE JOHNSON: I'm Carrie Johnson in Washington. U.S. Attorney Patrick Fitzgerald faced the cameras in December 2008, to report the Illinois governor had hit a new low in Chicago politics.

Mr. PATRICK FITZGERALD (U.S. Attorney): Governor Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree. We acted to stop that crime spree.

JOHNSON: Fitzgerald went on to invoke the state's most beloved political figure, former President "Honest" Abe Lincoln.

Mr. FITZGERALD: But the most cynical behavior in all this, the most appalling, is the fact that Governor Blagojevich tried to sell the appointment to the Senate seat vacated by President-elect Obama. The conduct would make Lincoln roll over in his grave.

Ms. VICTORIA TOENSING (Former Justice Department Official): When Patrick Fitzgerald called a press conference and said to the world that Lincoln would be turning over in his grave, he violated the prosecutor's ethical rule.

JOHNSON: That's Victoria Toensing. She's a former Justice Department official, and she's still bothered by Fitzgerald's bold statements in an active criminal case.

Ms. TOENSING: The prosecutor has a lot of weight in the community. And for Fitzgerald to get out and start talking about what he thought about the evidence influences the jury pool.

JOHNSON: Apparently, that influence didn't go far enough in the jury room. After seven weeks of trial and 14 days of deliberations, the jury could not reach a unanimous verdict on most of the charges. Jurors listened to recorded conversations, and heard the former governor talk about using his political office to fulfill his dreams of money and glory. But he didn't actually consummate most of the farfetched plans before the FBI knocked on his door.

Stan Brand is a defense lawyer who specializes in political corruption cases.

Mr. STAN BRAND (Attorney): And there was a lot of puffery, a lot of bluster, a lot of scurrilous talk - but apparently, not enough to convince people that a crime had been committed.

JOHNSON: Brand says the Blagojevich case could force prosecutors to draw a new line between unpleasant political horse-trading that goes on every day, and the kinds of kickbacks and bribery schemes that clearly break the law.

Mr. BRAND: The courts - and in some sense, this jury - are starting to look at these things in a different light and say that before we put somebody in jail under the heavy penalties that the federal system imposes, we are going to require the clear commission of a corrupt act. And political puffery doesn't make it.

JOHNSON: But the jury did agree on one charge: lying to the FBI. That could send Blagojevich to prison for up to five years, though he's likely to get far less time because he has no prior criminal record.

Some jurors say they came close to convicting Blagojevich on other charges, including an allegation the governor tried to sell a Senate seat to the highest bidder. Blagojevich, true to form, is claiming victory.

Mr. ROD BLAGOJEVICH (Former Governor, Democrat, Illinois): This jury just shows you that notwithstanding the fact that the government threw everything but the kitchen sink at me, that on every charge except for one, they could not prove that I did anything wrong, that I did break any laws.

JOHNSON: Chuck Rosenberg, a former prosecutor in Virginia, says that's just more of the former governor's empty rhetoric.

Mr. CHUCK ROSENBERG (Former Prosecutor): Well, I don't believe for a minute that it's a victory - unless you consider being a convicted felon a victory.

JOHNSON: Prosecutors in Chicago promised to retry Blagojevich as soon as possible. Former prosecutor Rosenberg says that's a path the Justice Department often follows.

Mr. ROSENBERG: If past is prologue, the government, following a hung jury, usually convicts at a retrial. It's happened to me several times when I was an assistant U.S. attorney, and I fully expect that the Northern District of Illinois will convict at the second trial.

JOHNSON: Both sides are due in court next week to discuss how quickly they'll move ahead with the government's second bite of the apple.

Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.