Did McClain speak for the House speaker? A legal battle to watch for in Madigan case

Former Speaker Michael Madigan’s indictment says he “directed the activities of his close friend and associate, [Michael] McClain, who carried out illegal activity at Madigan’s direction.” And the feds have portrayed McClain as a Madigan surrogate.

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Former Illinois Speaker of the House Michael Madigan attends a committee hearing in February last year on the Southwest Side to decide who will take over as state representative in the 22nd House District seat, a position held by Madigan since 1971.

Ex-Illinois Speaker of the House Michael Madigan attends a committee hearing in February last year on the Southwest Side to decide who will take over as state representative in the 22nd House District seat, a position held by Madigan since 1971.

Ashlee Rezin/Sun-Times file

No one seemed too surprised when the famously reclusive former Illinois House Speaker Michael J. Madigan made it all the way through his arraignment Wednesday on federal racketeering charges without saying a single word.

His indictment isn’t much different. Madigan is certainly quoted deep within the 106-page bombshell document, but his comments won’t exactly go down in Chicago corruption history like Ald. Edward M. Burke’s: “did we land . . . the tuna?”

Madigan’s are more along the lines of “OK . . . very good.”

That doesn’t necessarily mean the feds have a problem. Also charged is Michael McClain, a longtime Madigan ally who allegedly once told ComEd officials in an email, “I know the drill and so do you” and complained about spending “valuable minutes” on something that could “provoke a reaction from our Friend” —meaning Madigan.

Because Madigan and McClain are charged as co-conspirators, legal experts predict prosecutors will move to use such words, as well as recorded statements from McClain, against Madigan if the case ever goes to trial.

“And the defense is going to want to keep these recordings from coming in,” said Nancy DePodesta, a former federal prosecutor in Chicago who is now partner and co-chair of the white-collar practice group at Saul Ewing Arnstein & Lehr.

That makes it a legal battle to watch for as Madigan’s case winds its way to a jury —a process that will likely take years.

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Michael McClain

AP file

Attorneys for the two men declined to comment. McClain attorney Patrick Cotter has previously said prosecutors have tried to get McClain to cooperate “for years,” but “he will never testify falsely about himself or anyone.”

Madigan and McClain are charged with a racketeering conspiracy in the highly anticipated March 2 indictment. They each pleaded not guilty through their lawyers during an arraignment held by phone. True to form, Madigan did not speak. McClain, who had trouble getting on the line, apologized to the judge for being “electronically challenged.”

Analysis bug

Analysis

The indictment alleged the two men — along with Madigan’s law firm, the speaker’s office, the 13th Ward Democratic Organization and others —formed the “Madigan Enterprise,” which was designed to enrich Madigan and his allies, and to expand Madigan’s political power.

The document alleges schemes involving ComEd and former Ald. Danny Solis (25th), whom it says worked undercover for the FBI, “a fact that was unknown to the defendants prior to in or around January 2019.” That’s when the Sun-Times revealed Solis’ cooperation.

Madigan is quoted directly at times. For example, after Solis told Madigan on March 27, 2018, that a development group would “appreciate it” and give business to Madigan’s private law firm if Madigan could help facilitate the transfer of a Chinatown property from the state to the city, Madigan allegedly said, “OK, all right, very good.”

And after Solis said on Aug. 2, 2018, that he wanted an appointment to a state board that paid more than $100,000 a year, Madigan allegedly told Solis, “just leave it in my hands” before asking Solis to help Madigan’s son.

But the indictment also says “Madigan directed the activities of his close friend and associate, McClain, who carried out illegal activity at Madigan’s direction.” And ever since the feds first charged ComEd with bribery in July 2020, they’ve portrayed McClain as a Madigan surrogate, pressuring ComEd officials to give jobs, contracts and money to associates of the then-speaker.

“I would say to you don’t put anything in writing . . . all it can do is hurt ya,” McClain allegedly told a ComEd executive in February 2019, according to records in the ComEd case.

Defense attorneys could argue McClain, a ComEd lobbyist at the time, had his own separate agenda.

To use McClain’s statements against Madigan, DePodesta said prosecutors will have to show first that a conspiracy existed involving the two men, and then that the statements in question were made “during and in furtherance” of that conspiracy.

She said they’ll have to show their allegations are more likely true than not. And to help meet their burden, they’ll have Solis and Fidel Marquez, a onetime ComEd executive who pleaded guilty to a bribery conspiracy in 2020, agreeing to cooperate with the feds.

Prosecutors would make their case in what’s known as a Santiago proffer, typically a highly detailed document filed closer to trial.

One example in the indictment of McClain allegedly speaking for Madigan comes amid a scheme in which the feds say Madigan agreed to use his position as House speaker to help with the transfer of the Chinatown property to clear the way for the development group’s proposal.

The indictment alleges Madigan assigned McClain to work on the transfer. Then, around Dec. 18, 2017, it says Solis told McClain that, “in the past, I have been able to steer some work to Mike [Madigan], and these guys will do the same thing.”

After hearing that, the indictment alleges McClain made an agreement —that Madigan would help with the Chinatown property transfer.

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