ComEd Four lawyers attack case after Supreme Court ruling

Lawyers for four former ComEd executives and lobbyists convicted in connection with a bribery plot against then-House Speaker Michael Madigan argue in a new court filing that the entire prosecution is built on a “rotten foundation” and that the charges should be thrown out in light of a key Supreme Court ruling in June.

The motion, filed late Tuesday, spells out in stark detail how defense attorneys for the so-called “ComEd Four” view the impact of the Supreme Court's ruling in the bribery trial of former Indiana Mayor James Snyder. It says the federal bribery law known as “666” does not criminalize “tips,” which are favors or gifts given to a public official without a prior agreement to perform an official act.

“From the outset, the government in this case has argued that it is criminal to give things of value to a powerful politician as a reward for past actions or to extract favors without giving anything in return,” ComEd Four's defense teams argued in the motion. “On that basis, the government has built an edifice of overlapping charges. But as with all buildings, if the foundation is rotten, the building falls. And in Snyder v. United States, the Supreme Court confirmed that the government's theory was rotten from the start.”

The four ComEd defendants – former ComEd CEO Anne Pramaggiore, Madigan confidant and longtime lobbyist Michael McClain, in-house ComEd lobbyist John Hooker and consultant Jay Doherty – were sentenced in May 2023 in connection with an alleged scheme by the utility to funnel payments to contractors favored by Madigan in exchange for the longtime Democratic speaker's influence over legislative action in Springfield.

Because the case relied heavily on allegations of bribes, sentencing had been delayed since January while the parties awaited the decision in the Snyder case. Meanwhile, the judge who presided over the trial, Harry Leinenweber, died in June at age 87, and the case has since been assigned to U.S. District Judge Manish Shah.

The defense's motion on Tuesday said the prosecution's theory in the case was wrong from the start, including before the grand jury, where the panel was told it could charge the defendants with conspiracy “based on their lawful conduct in paying a tip.”

The new motion asks Shah to overturn the jury's decision and acquit all four defendants — an extremely rare move in any criminal case, let alone a high-profile public corruption trial. Alternatively, the defense has asked to dismiss the charges and force the government to retry the case under the new standards.

The public prosecutor's office is expected to respond on October 15.

The same ComEd allegations now form the backbone of the pending organized crime charges against Madigan and McClain, which are scheduled to begin trial on Oct. 7. Lawyers in that case are still debating what to do in light of the Supreme Court ruling, though both sides have said it should not delay the trial any further.

The motion, however, offers a preview of what will likely form a key part of Madigan's defense: that there was never any agreed-upon quid pro quo to help ComEd achieve its legislative goals.

The motion argues that even after years of investigation, hundreds of hours of wiretapped phone conversations and the assistance of a key insider, then-ComEd Vice President Fidel Marquez, who secretly recorded conversations of his own colleagues about the plan, the evidence represented nothing more than a company's attempt to “curry favor” with a powerful politician in the hope that doing so would increase its profits – a common practice in politics that the Supreme Court has said is not illegal.

“All the administration could think of was that Speaker Madigan had the power, everyone knew it, and regulated companies like ComEd were responding to that power,” the motion said.

Even prosecutor Marquez testified in court that he did not believe ComEd was doing favors for Madigan “in exchange for any official action on his part,” the motion said.

As a government witness, Marquez testified in March 2023 that the list of “subcontractors” hired by ComEd was compiled by McClain and read like a who's who of Madigan's vaunted political operation, including two legendary district leaders, a former House deputy majority leader and two former Chicago aldermen at the center of Madigan's Southwest Side power base.

Over the course of eight years, ComEd paid them hundreds of thousands of dollars even though they had no special skills and ultimately did virtually no work for the utility. Some seemed downright incompetent, Marquez told the jury.

“I know they were brought in as a favor to Michael Madigan,” Marquez testified under direct questioning. “So that Madigan would look favorably on ComEd. So that he might be helpful with our legislative agenda in Springfield.”

Under cross-examination, Marquez, who pleaded guilty to conspiracy to commit bribery and is awaiting sentencing, acknowledged that there was “no guarantee” that Madigan would help pass ComEd legislation, but added that the company was still trying to please him because “otherwise it would create a negative image of us” with the speaker.

He also admitted that he initially told the FBI that he did not believe it was a bribe.

“You didn’t believe ComEd bribed Mike Madigan, did you?” asked Pramaggiore’s attorney, Scott Lassar.

“Correct,” Marquez replied.

The defense's motion on Tuesday said Marquez's testimony showed he was motivated by “his personal fear of retaliation” from Madigan rather than any promises to support ComEd's goals.

“Mr. Marquez's well-prepared testimony leaves no doubt that there was no offer or agreement that Mr. Madigan would take any official action in exchange for ComEd's acceptance of his recommendations,” the motion states.

After the Supreme Court's decision in the Snyder case in June, Lassar, a former U.S. attorney, told the Tribune that he believed the convictions in the ComEd case would not stand.

“The Supreme Court has made it clear that the charges against Anne Pramaggiore do not constitute a crime,” Lassar said.

In the highly anticipated 6-3 Supreme Court decision, which was also expected in federal court in Chicago, the justices agreed that the anti-corruption law under which Snyder was convicted was vague and potentially criminalized innocent, everyday conduct.

Madigan's lawyers filed a motion in July arguing that 14 of the 23 counts were “fatally weak” and should be dropped, in part because there was no evidence that the once-powerful leader agreed to abuse his official position for personal gain.

The motion argued that prosecutors failed in their “widely publicized, lengthy indictment” to allege facts “that would support a belief that Madigan acted corruptly or agreed to, or intended to agree to, any quid pro quo.”

Prosecutors then argued that there was sufficient evidence to show that Madigan was involved in a long-standing conspiracy for personal gain, including common reciprocal bribery and not just isolated cases of corrupt benefits.

The Supreme Court's decision has no impact on prosecutions “directed against schemes involving a series of benefits over an extended period of time offered or received in return for an official act,” the U.S. Attorney's Office said in a statement.

Prosecutors dismissed the extensive pre-trial documents as an attempt by Madigan and McClain to “prevent a jury from examining their conduct and holding them accountable for their gross abuse of power.”

[email protected]