Alvarez Demand For More Powers Is Uncalled For

Published April 30, 2009

Cook County State’s Attorney Anita Alvarez has spent the past 12 years in charge of public corruption prosecutions in that office. She was third in command when elected to the top job in November 2008, vowing to use that job’s “great power” to prosecute corrupt politicians. In February she said, “There will be zero tolerance when it comes to our efforts to investigate and root out public corruption wherever it leads.”

But right after the indictment of former Gov. Rod Blagojevich was announced, Alvarez told the media she can’t prosecute crooked politicians without the wiretapping tools federal prosecutors have. She’s urging the Illinois legislature to give her equivalent power.

Alvarez is either clueless about the law or bent on continuing her office’s hallowed tradition of pretending public corruption doesn’t exist: She already has wiretapping powers virtually identical to what federal prosecutors have.

Both Illinois law and federal law enable prosecutors to get court orders authorizing wiretaps so long as they can, to the judge’s satisfaction (the quoted language is identical in both the federal and state statutes): (1) identify the person “if known” whose communications are involved; (2) give details about the offense “that has been, is being, or is about to be committed;” (3) explain why “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;” (4) explain why an interception ought not terminate after the first capture of the described type of communication; (5) limit interceptions to a 30-day time period, though extensions can be granted after explaining to the judge the results already obtained; and (6) provide other detail as required by the judge.

If the judge is convinced probable cause for the wiretap exists based on this information, he or she can issue an order allowing it to proceed.

While Illinois law limits wiretapping authority potentially applicable in public corruption investigations to the crimes of money laundering or conspiracy to commit it, nothing prevents Illinois prosecutors from using information about other crimes gained from a money-laundering wiretap. Prosecutors also have the power under federal law to get wiretaps for a broader range of alleged crimes such as bribery, extortion, and related conspiracies.

Even without this federal empowerment, money laundering in Illinois is very broadly defined, involving almost all handling of the proceeds of unlawful activity. Former Governor George Ryan was indicted in connection with this crime, among others.

The U.S. Constitution gives the states primary responsibility for prosecuting crime. Quoting James Madison while striking down a federal law criminalizing possession of a gun near a school, the U.S. Supreme Court stated the federal government’ powers are “few and defined” while states have powers, called police powers, that are “numerous and indefinite.” Nothing in the Constitution authorizes the federal government to prosecute crime, the court said, so this power remains with the states.

Federal law applies to corrupt state and local officials whose crimes take place entirely within a single state only when the officials use channels of interstate commerce—which the federal government does have the defined power to regulate—such as the U.S. mail and interstate telephone lines. Merely picking up the phone to make a local call involving a corrupt scheme converts state law crimes into federal ones, a tenuous connection at best. Otherwise, federal crimes incorporate state law offenses, as the Blagojevich indictment does.

Alvarez has the power under state law to prosecute corrupt politicians and use wiretaps in the process, just like Fitzgerald does. She says she’s serious about doing this. She should get on with it.

Paul E. Fisher, an attorney, is a partner at McGuire Woods LLP and heads its Chicago real estate department. He is also on the Board of Directors of The Heartland Institute. Maureen Martin, also an attorney, is senior fellow for legal affairs at Heartland