‘This is the way things are done in Illinois’: Defense attorneys begin cross

CHICAGO – The former chief lobbyist for electric utility Commonwealth Edison has spent the last week telling a federal jury how he bent over backward to accommodate hiring requests from former Illinois House Speaker Michael Madigan.

Led by the prosecutor questioning him, ComEd exec-turned-cooperating witness Fidel Marquez repeatedly said he and other utility leaders agreed to hire or contract with the powerful speaker's allies in order for Madigan "to be more positively disposed toward ComEd's legislative agenda."

But on Tuesday, an attorney for Madigan co-defendant Mike McClain, ComEd's longest-serving contract lobbyist, began his cross-examination of Marquez by drilling down on his previous testimony – and his guilty plea in 2020 for bribery conspiracy.

"Are you not saying and are you not testifying at this trial that in your mind, the purpose of this conspiracy was to trade jobs at ComEd for Mike Madigan taking action?" Cotter asked, referring to action Madigan is alleged to have taken on legislation ComEd pushed in Springfield.

"I said it was to consider ComEd's agenda favorably," Marquez said.

"Right," Cotter replied. "Not to trade jobs for action"

"Looking at it favorably, to my mind, is an action," Marquez said.

Cotter's line of questioning points to a U.S. Supreme Court decision this summer that narrowed federal bribery law to exclude "gratuities" – rewards given after an official action – and stipulated that bribery requires an agreement of an exchange prior to the action.

Prosecutors, however, say their case isn't affected by the ruling, as they're pursuing a "stream of benefits" legal theory, wherein a pattern of corrupt exchanges over a long period of time is proof enough of a quid pro quo, even if there's no smoking gun evidence of a handshake deal. The feds say that "stream of benefits" is more than covered by the 7 1⁄2 years at issue in the case, which included dozens of job recommendations from Madigan and several large pieces of legislation ComEd pushed for, and in one case killed.

But Cotter on Tuesday was barred from asking Marquez whether he believed he'd done anything illegal – something he'd been allowed to ask Marquez during cross-examination in last year's "ComEd Four" trial. That trial ended with unanimous convictions for McClain and three other former ComEd lobbyists and executives charged with bribing Madigan.

In his cross-examination of Marquez last March, Cotter noted that for more than a year after FBI agents approached him in January 2019, even after he agreed to become a cooperating witness, Marquez still insisted he hadn't done anything criminal. His eventual guilty plea to a single conspiracy bribery charge in September 2020 was a purely opportunistic move to avoid prison time, Cotter alleged.

With the jury out of the courtroom, parties argued the contours of what Cotter could elicit during cross-examination, and Assistant U.S. Attorney Amarjeet Bhachu quoted from a report FBI agents prepared after an early interview with Marquez shortly after he agreed to become a government mole.

"The CHS (cooperating human source) does not believe this is right, but this is the way things are done in Illinois," Bhachu read from the report.

But U.S. District Judge John Blakey blocked Cotter from referencing a claim made by Marquez during a January 2019 meeting with FBI agents that he hadn't done anything illegal.

Before Cotter began questioning Marquez on Tuesday, Bhachu finished out four days of direct examination with several more examples of McClain pushing job recommendations from Madigan to Marquez.

In an August 2018 wiretapped phone call between McClain and Madigan, the speaker floated getting Jeffrey Rush, the son of then-U.S. Rep. Bobby Rush, a consulting contract with the Illinois Department of Corrections in the assumed future administration of Gov. JB Pritzker, who hadn't yet won the governor's mansion. Rush, Madigan acknowledged, "got himself jammed up" having a sexual relationship with a woman in a halfway house run by IDOC while he worked for the agency.

"This is a guy that I'm gonna wanna help somewhere along the road," Madigan said.

It wasn't until six months later that McClain and Rush had a conversation about how McClain could help him find a job, and then another two months until McClain asked Marquez if ComEd could help. Marquez happened to be secretly videotaping the ask over lunch at the now-defunct Sangamo Club in Springfield, a hangout for many lawmakers and lobbyists. But Marquez declined, saying it would be "hard for me to place him in good conscience within the company" after McClain had outlined Rush's indiscretion.

Madigan also tried to place Vanessa Berrios, the daughter of former Cook County Assessor and county Democratic Party chair Joe Berrios and sister of former Democratic state Rep. Toni Berrios, in a job at ComEd in late 2018.

"My thought was that there might be a place for her at ComEd," Madigan said in a December 2018 wiretapped call with McClain.

The jury already saw emails last week showing ComEd's parent company Exelon was ready to terminate Toni Berrios from its contract lobbying team at the end of 2016 but renewed her contract for 2017 after a McClain relayed a request from Madigan.

Emails shown to the jury indicate McClain's continued involvement with getting Vanessa Berrios a job, including one telling Marquez that Madigan asked about her weekly. But Marquez testified that she ultimately declined an interview.

In his 15 hours on the witness stand with Bhachu questioning him, Marquez testified about dozens of instances in which McClain passed along job recommendations from Madigan, from political allies to residents in his 13th Ward power base on Chicago's Southwest Side.

ComEd lobbyist warned FBI mole to 'keep Madigan happy' and not mess with no-work contracts

But McClain had made himself indispensable both as Madigan's self-described "agent," and as ComEd's chief lobbyist, so much so that even after his official retirement from lobbying in late 2016, Marquez found himself calling McClain enough for advice that he convinced his boss to create a consulting contract for him.

Before McClain officially became a ComEd consultant, he wrote an email to Marquez in early April 2017 asking if he wouldn't mind if McClain continued his previous work of acting as the go-between for intern recommendations from the 13th Ward for ComEd's summer internship program.

"I am not asking for any money," McClain wrote. "It just seems to be that maybe by next summer we may have someone employed that will have the trust of the 13th ward and you (ComEd). You and I have a system and so why have someone take it over when we will have to train from square one just to have someone else work with you next spring?"

The jury has previously heard that McClain was hoping longtime Madigan staffer Will Cousineau would take his place as ComEd's lead contract lobbyist when Cousineau left the speaker's office in the summer of 2017. Cousineau testified earlier in trial that after interviewing and a back-and-forth on salary, he ultimately took a full-time job at a lobbying firm, though he'd pick up ComEd as a client in 2018 and 2019.

By early 2019, however, there was still no one to replace McClain, and it was getting to be a burden on both McClain and the speaker. In a lengthy call Bhachu played toward the end of his direct examination, McClain and Marquez discussed the issue with former ComEd CEO Anne Pramaggiore, who'd been promoted to CEO of Exelon Utilities the year before.

"We're in a conundrum," McClain said, explaining that Madigan had called him and expressed mild frustration that he didn't know who to turn to about issues related to ComEd or Exelon since McClain was no longer around as much in retirement.

At the time, ComEd was advocating for an extension of a "sunset" the speaker's team had insisted on including in an earlier law that gave electric utilities more predictable outcomes when asking state regulators to approve increases to electricity rates. Other energy and environmental interests were launching their own legislative efforts in hopes they could be tacked onto ComEd's bill.

"The point person has to have his (Madigan's) trust and also have the company's trust ... And that person's gotta be very discreet," McClain said, referring to a "code" the point person would implicitly understand. "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?'"

McClain again floated Cousineau for the go-between role, and in a follow-up email said he'd sit down with Cousineau to talk about it, saying he "has our Friend's confidence," using a euphemism he often employed for Madigan.

"It is not an easy position," he wrote. "Our friend is very, very cautious about letting people know and do what he needs done."

Cotter spent his hours cross-examining Marquez Tuesday establishing McClain's value to ComEd. Marquez acknowledged that McClain had done a lot of work to repair the relationship between ComEd and the speaker, which had been damaged around 2007 but had never been strong, as Madigan had long been a skeptic of utilities.

He also acknowledged that ComEd received job recommendations from many sources, including then-Senate President John Cullerton and then-House GOP Leader Jim Durkin, in addition to other elected officials, ComEd contractors and employees. And as the lobbyist, and later consultant, McClain was assigned to maintaining the relationship between the utility and Madigan.

"So when Mike McClain communicated to you job recommendations from Mr. Madigan, that was part of his job?" Cotter asked.

"Yes," Marquez replied.

Cotter also went through various lobbying efforts to show how McClain built coalitions in order to pass bills – and didn't just place a call to the speaker. For example, when ComEd was trying to kill a 2018 effort by then-Attorney General Lisa Madigan, McClain got the speaker's permission to kill his daughter's bill, but McClain and other executives still had to put in massive work to get it done.

Cotter played a call between McClain, Marquez and Pramaggiore discussing the strategy to defeat the bill, which included calling on all stakeholders from faith leaders to ComEd's large customers and vendors to organized labor, the constituency Madigan valued most.

"At no point does Mr. McClain ever say, 'Well why don't I go talk to the speaker and see if I he can assist us in killing this bill?'" Cotter asked Marquez.

"He does not," Marquez agreed.

Cotter is expected to finish his cross-examination Wednesday and pass the baton to Madigan's attorneys.

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