Burke’s lawyers try to hang up prosecution’s case with challenges to phone recordings

The indictment relies to a large extent on wiretap recordings of Burke’s phone calls, and a major element of his defense is trying to convince Judge Robert Dow that prosecutors never had probable cause to justify getting approval for the wiretaps in the first place.

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Ald. Ed Burke (14th) attends the City Council meeting Wednesday morning, the first in-person council meeting since the start of the coronavirus pandemic more than a year ago.

Ald. Ed Burke (14th) attends the City Council meeting Wednesday morning, the first in-person council meeting since the start of the coronavirus pandemic more than a year ago.

Ashlee Rezin Garcia/Sun-Times

Ald. Edward M. Burke (14th), having no shame, took his normal seat Wednesday at the City Council as that august body resumed its in-person deliberations for the first time since its pandemic hiatus.

It was easy to forget about Burke this last year while the Council was meeting only remotely via video, the once powerful Finance chairman just another box in the Hollywood Squares except when he opened his yap, which was mercifully far less frequently than when he was the chamber’s loquacious ringmaster.

But there he was Wednesday, back in our face, a reminder that he hasn’t gone anywhere despite a federal corruption case now pending more than two years with no trial in sight. That’s his right, of course, having been duly reelected by the voters of his Southwest Side ward, which makes it no less galling.

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And that’s why we can give you a fresh photo of a masked Burke from Wednesday when federal prosecutors made public a lengthy — and heavily redacted — court filing responding to efforts by his lawyers to toss out the charges against him, or in the alternative, to quash some of the government’s best evidence.

Burke has some very good lawyers, Joseph Duffy from Loeb & Loeb, and Charles Sklarsky and former U.S. Attorney Anton Valukas from Jenner & Block, and in re-reading their filings from last summer, I have to admit they gave me pause to consider the possibility that their client might yet go free altogether.

I’m as guilty as anyone in the news media of losing sight of the presumption of innocence and presuming instead that when federal prosecutors bring charges against a big fish like Burke they will make something stick, even if their track record certainly bears out that way of thinking.

It’s even harder to keep an open mind when it’s someone like Burke, who I’ve always believed was using his public office to leverage clients for his law business, although I might have imagined he was a little more subtle about it than described in the indictment accusing him of extortion and bribery.

Ald. Ed Burke (14th) attends the City Council meeting at City Hall Wednesday morning.

Ald. Ed Burke (14th) attends the City Council meeting at City Hall Wednesday morning.

Ashlee Rezin Garcia/Sun-Times

That indictment relies to a large extent on wiretap recordings of Burke’s phone calls, and a major element of his defense is trying to convince Judge Robert Dow that prosecutors never had probable cause to justify getting approval for the wiretaps in the first place.

They argue federal investigators had no evidence of Burke attempting to commit a crime, just because he was talking with Ald. Danny Solis (25th), at the time working as a government mole, to help him get law business from developers of the old central Post Office building.

One of their contentions is that Burke offered to take no official action on the developer’s behalf and really wasn’t in any position to do so because the matter was before Solis, not him.

I thought prosecutors answered that pretty well, making it more clear to me than ever that their theory of the case is that Burke was using the threat of official action by Solis — who was in a strong position to block the project because it was located in his ward — to leverage legal fees for himself, which he was then promising to split with Solis.

Former Ald. Danny Solis in 2016.

Former Ald. Danny Solis in 2016.

Brian Jackson / Sun-Times file

That is just the sort of bank shot I would have always expected from Burke, and in this case, he was allegedly proposing to cover up the payment by channeling it through another lawyer, which also fits.

Another complaint from Burke’s lawyers is that federal investigators got permission to tap Burke’s phones based on the Post Office investigation, but then stumbled upon phone calls dealing with another alleged shakedown with which he was eventually charged involving the remodeling of a Burger King in his 14th Ward.

Burke’s lawyers say investigators should have stopped listening when the subject switched to the Burger King. In wiretap law, that’s called minimization.

Prosecutors say, in very precise legal language, that’s just Burke’s tough luck.

In making the point that investigators took seriously their duty to “minimize” the calls on which they eavesdropped, prosecutors noted: “Numerous calls were minimized (and even subject to automatic minimizations in some cases) once it was determined that the call concerned a non-pertinent subject or was with an individual who had a personal or private relationship with Burke.”

That came as close to anything I’ve seen to answering a question I’ve had since the start of this case: What did the feds do when Burke was talking on the phone with his wife, Illinois Supreme Court Justice Anne Burke?

I think they were under orders not to listen. A footnote that might have provided the answer was completely redacted.

Burke may not be going anywhere, but neither is this case.

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