As ‘ComEd Four’ shifts to defense, FBI wiretaps could prove hard to overcome

As the “ComEd Four” trial shifts to the defense phase, one thing has become clear.

The prosecution’s best testimony hasn’t come from the cooperators who lined up to testify about ComEd’s efforts to stay in Democrat Michael Madigan’s good graces.

It’s come from the defendants’ own mouths, captured in the dozens of wiretapped phone calls and secretly recorded videos in which they talked about an alleged scheme to funnel payments to Madigan’s cronies in exchange for little or no work on ComEd’s behalf — all when they thought no one was listening.

Those FBI wiretaps, however, only started rolling in mid-2018, years after the utility’s key legislative wins in 2011 and 2016 that are at the heart of the allegations in the indictment.

What lies between is a rather large gap in which prosecutors are asking the jury to make the connection, based largely on circumstantial evidence, that the defendants believed the favors they were doing for Madigan would cause the speaker to help the company get what it wanted.

At times, the prosecution’s evidence of Madigan’s influence has looked more like what any Springfield insider would say is typical legislative wheeling and dealing. They’ve shown roll calls and action reports showing bills being passed out of the Rules Committee, negotiated heavily by stakeholders on all sides, amended, returned to rules, and ultimately sent to the House floor for a frenzied vote.

Little happened in the House without Madigan’s touch, of course, and as the House speaker, he controlled the levers that moved or killed virtually any bill before the General Assembly.

But to prove their case, prosecutors have to show that the defendants, through Madigan, somehow intended to corrupt that process.

To be sure, there was no silver bullet in the government’s case, no bag of cash being exchanged or a moment on a recording where Madigan or any of the other players refer to what they were doing as illegal.

Perhaps the most damaging tape heard by the jury came from a conversation in early 2019 when defendants Michael McClain, a longtime confidant of Madigan, and John Hooker, a contract lobbyist, talked in blunt language how they hatched the plan to funnel money to Madigan’s hand-picked associates through lobbying subcontracts.

“We had to hire these guys because Mike Madigan came to us,” McClain told Hooker on the call. “That’s how simple it is. So if you want to make a federal court suit over it, OK. But that’s how simple it is.”

Another problematic recording for the defense came weeks later, when ComEd executive Fidel Marquez, who was secretly cooperating with investigators, asked defendant Jay Doherty, a ComEd contract lobbyist, what he had his Madigan-backed subcontractors doing for the utility.

“Well, not much, to answer the question,” Doherty said. “They keep their mouth shut, and you know. But do they do anything for me on a day-to-day basis? No.”

Under the governing case law, prosecutors do not have to show a specific or obvious quid pro quo between Madigan and the four defendants, only that there was a corrupt intent to provide the stream of benefits to Madigan in order to win his influence.

Now that the prosecution has rested its case in chief, the defense is getting its chance to poke holes in that theory, starting with defendant Anne Pramaggiore, the former ComEd CEO who took the stand in her own defense late Thursday and denied that Madigan ever had his thumb on the scale for her company.

Pramaggiore’s testimony is set to resume Monday.

The indictment alleged the four defendants steered a total of $1.3 million in payments from ComEd to Madigan-approved subcontractors between 2011 and 2019. The charges also alleged the defendants schemed to hire a clout-heavy law firm run by political operative Victor Reyes and stack the utility’s summer internship program with candidates sent from the 13th Ward.

The four on trial — McClain, Pramaggiore, Hooker, and Doherty — have all pleaded not guilty. Their lawyers have contended the government is trying to turn legal lobbying and job recommendations into a crime.

Madigan and McClain face a separate racketeering indictment that is set for trial next year.

Madigan, who held the speakership for a nationwide record 36 years, lost the position two years ago as the burgeoning scandal started to engulf him. He soon resigned his Southwest Side House seat and the chairmanship of the state Democratic Party. He was indicted last year.

Historically, defendants in corruption cases charged in Chicago’s federal court have faced long odds of winning acquittal, and the ComEd Four case is likely no different.

Pramaggiore has taken the rare and risky step to take the stand in her own defense, hoping to convince the jury she is the highly ethical and honest leader described by her long lineup of character witnesses, not the person on the recordings who seemed at ease with participating in an Illinois’ old-school, pay-to-play political system.

Under direct examination by her attorney on Thursday, Pramaggiore was adamant that she never felt that ComEd had Madigan in its pocket.

“Did he say, ‘If you hire some people at my request, I’ll help you out with your legislation’?” asked her attorney, Scott Lassar.

“No,” she said firmly.

“And did that ever change?”

“No.”

Pramaggiore is sure to be cross-examined on that point when prosecutors get a chance to question her this week.

Jurors will also have to weigh Pramaggiore’s statements on the witness stand against what she said in the covert recordings, when she repeatedly pushed for things that Madigan wanted, sometimes even against the wishes of other top executives at ComEd or its parent company, Exelon Utilities.

“You take good care of me, and so does our friend, and I will do the best that I can to, to take care of you. You’re a good man,” Pramaggiore allegedly told McClain in one September 2018 call, allegedly referring to Madigan as “our friend” instead of by name.

One particular instance of Pramaggiore allegedly doing Madigan’s bidding was in the push to put Juan Ochoa, the former boss of the Metropolitan Pier and Exposition Authority, on ComEd’s board of directors. Several of Pramaggiore’s colleagues had raised concerns about Ochoa’s checkered financial past, according to court testimony.

When Pramaggiore ran by McClain the alternative idea of putting former Ochoa into a part-time ComEd gig instead — one that would pay the same $80,000-a-year compensation as the board job — McClain relayed back to her that the speaker wanted to keep pressing for Ochoa.

“OK, got it,” Pramaggiore said without pause on a recording played for the jury. “I will keep pressing.”

As the appointment was still pending, word that Ochoa had been selected leaked, causing a stir in political circles.

In one recorded call before Marquez began cooperating, he told Pramaggiore that he’d been having dinner with then-state Sen. Iris Martinez when the subject of Democrat J.B. Pritzker’s campaign for governor came up.

“Iris starts going off about Pritzker and how there are people who were Blagojevich cronies,” Marquez told Pramaggiore on the August 2018 call, referring to former Gov. Rod Blagojevich, “and now they’re coming back out of the woodwork and they’re trying to get in with the Pritzker camp, like, and she goes, ‘Like that mother (expletive) Juan Ochoa.”

“Oh no,” Pramaggiore said, laughing. “Ugh. Oh my God.”

Listen to the audio:

Ochoa’s appointment to the board was made official eight months later.

Another challenge for the defendants will be to explain to the jury why Pramaggiore and other top ComEd executives, including Marquez, spent so much time dealing with job recommendations being funneled from Madigan through McClain, often for unqualified candidates seeking low-ranking ComEd positions.

Jurors have seen dozens of emails and other evidence detailing how Madigan repeatedly turned to ComEd to try to land jobs and contracts for political associates, including the wife of convicted former City Clerk Jim Laski, the convicted son of U.S. Rep. Bobby Rush, former U.S. Rep. Morgan Murphy, and two daughters of former Cook County Democratic Chair Joe Berrios, who also served as county assessor.

It was a similar scenario with ComEd’s summer internship program, where year after year, a select number of jobs were given to students with political ties to Madigan’s 13th Ward fiefdom.

There were also demands for more menial favors, everything from mediating disputes over utility pole work in the 13th Ward to dropping everything and taking care of a power outage being experienced by the speaker’s daughter, Tiffany.

All of the demands came through McClain, who constantly reminded everyone in his communications that he was working on behalf of “our Friend” — his code name for Madigan.

McClain’s defense, led by attorney Patrick Cotter, has tried to play down Madigan’s lengthy list of job candidates, saying they were nothing more than recommendations that every politician in the state makes, which companies are free to reject.

In his cross-examination of Marquez, Cotter brought up the issue of Madigan’s daughter’s power outage request, which wound up getting the attention of several top ComEd executives, including Marquez.

Would it have been good lobbying, he asked, to give Madigan the 1-800 number for customer complaints, “so (the speaker) could give it to his daughter who’s sitting in the dark somewhere?”

“No,” Marquez answered.

Marquez did qualify his views a bit when Cotter asked him whether McClain was serving ComEd’s interests when he relayed a nearly constant barrage of Madigan job recommendations and other issues to him.

“Yes, but I think he was serving more Michael Madigan,” Marquez answered.

McClain’s role as a “double agent” for both Madigan and ComEd came up repeatedly in the government’s case, and jurors heard one fascinating wiretapped call where McClain discusses who might become his replacement as the company’s point person with the speaker once he fully retired.

McClain told Marquez the point person has to have both Madigan’s and the company’s trust.

“And that person’s gotta be very discreet,” McClain said, pausing to clear his throat. “And whoever that person is, uh, talking for the company, uh, like, let, let’s say it’s you. Uh, there’s a code, right?”

That “code” could be simply used as a way to identify Madigan in conversations as “Our Friend” or “Himself,” McClain said. Or it may be knowing what the speaker meant when he often didn’t say it directly.

“So, like, when all of a sudden I come to you and say … ‘Would you take a look at this resume?’ I mean, that’s like, ‘Will you drop and do and try to get this done as fast as possible?’ Right?” McClain said.

Another issue the defendants will have to explain is how so many Madigan-backed political pals ended up with subcontracts paid by ComEd and funneled under the radar through friendly lobbyists.

One secretly recorded meeting at ComEd’s offices captured McClain trying to explain to Pramaggiore’s successor as ComEd’s top executive, Joe Dominguez, that the Madigan subcontracts represented a modern version of old-style political patronage, such as when Madigan was given a free hand decades ago to name meter readers working in his ward.

“So, that’s just what we’ve, we’ve always done for, good lord, over 20 years now,” McClain said in the 2019 meeting, which was videotaped by Marquez. “Because we can’t really do meter readers, we don’t have ‘em anymore.”

At the heart of the alleged subcontracting scheme was Doherty, the former City Club of Chicago head whose consulting company, J.D. Doherty & Associates, was used as a pass-through for the illicit payments, according to prosecutors.

Over the years, Doherty’s contract with ComEd ballooned to $400,000 a year, with much of it going to cover the subcontracts that paid Madigan political friends, according to trial testimony. Prosecutors have said Doherty also got a “little bonus” with each contract for his troubles.

Among the Madigan acolytes on Doherty’s payroll was former 13th Ward Ald. Frank Olivo, longtime Madigan precinct captains Ed Moody and Ray Nice, and ex-23rd Ward Ald. Michael Zalewski, according to testimony.

In a key moment in the investigation, Marquez was sent by the FBI to talk to Doherty about how to inform Dominguez about the subcontractor arrangement, which was paid out of the CEO’s budget.

During the meeting, which was secretly video recorded by Marquez, Doherty said that ComEd’s money “comes from Springfield” and that his contract should not be “tinkered” with, noting he had “every reason to believe” that McClain talks directly with Madigan about the arrangement.

“My bottom-line advice would be, ‘If it ain’t broke, don’t fix it’ with those guys,” Doherty said.

Doherty’s attorneys have told the jury Doherty was simply saying that subcontractors like Moody, Nice and Zalewski were important to ComEd’s overall lobbying effort, and that their value can’t necessarily be quantified by number of hours worked in a given week.

“Jay doesn’t admit to a crime,” attorney Gabrielle Sansonetti said in her opening statement to jurors. “He gives him advice. These guys are connected to Madigan. They’re valuable. They can give you access. Don’t fire them.”

The jury has also heard a recording of McClain and Hooker talking about how they were the architects of the off-the-books subcontracts. In one exchange, Hooker boasted that the plan they devised to use Doherty as a go-between was “the best way to do it” and was “clean for all of us.”

“Right,” McClain responded. “We don’t have to worry about whether or not, I’m just making this up, whether or not (Zalewski) is doing any work or not. That’s up to Jay Doherty to prove that. ... We’re not monitoring his workload; whether or not Zalewski’s earning his five grand a month. That’s up to Jay Doherty.”

Hooker reminded McClain that they had come up with the plan, and that Madigan “thought it was great.”

Through recordings and witness testimony, prosecutors attempted to show that showering Madigan with favors would keep ComEd on the speaker’s good side when he decided whether a utility-backed bill should live or die.

But there were other ways in which Madigan allegedly kept his hands on the controls. In his own testimony last week, Moody, who for decades was one of the speaker’s most loyal foot soldiers, said Madigan arranged for his lobbying subcontract after they had a rare, angry confrontation over his future.

“He said calm down, you’re gonna get your contract. You’re gonna make your $45,000 a year.” Moody testified. But Moody told the jury Madigan also delivered an unambiguous warning:

“I control that contract and if you stop doing political work, you’ll lose that contract.”

Meanwhile, though Madigan is not on trial, he is so intrinsically tied to the allegations that jurors have been filled in on why top utility officials were trained to look for the way the speaker wiggled his eyebrow.

Before resting their case last week, prosecutors showed the jury a memo from McClain detailing how to deal with the speaker in a meeting.

Along with standard ideas, such as be transparent, McClain wrote that “if an eyebrow goes up,” the speaker should be asked if what was just said in the meeting “needs further explanation.”

In reviewing such thorough advice, Cotter, the attorney for McClain, noted that the speaker apparently “has an eyebrow that’s very suggestive,” drawing chuckles from the jury and court spectators.

jmeisner@chicagotribune.com

rlong@chicagotribune.com