Related Links

If you believe everything you read in the papers, Illinois Gov. Rod Blagojevich was indicted this week.

But that wasn't true. The governor has not been indicted. Reporting that he had been was an error made by many journalists.

The press made the mistake even after U.S. Attorney Patrick Fitzgerald had this to say at his press conference:

“First of all, there's not an indictment, realize. It's a complaint. So I don't want people to understand it's an indictment. We filed a criminal complaint.”

So what exactly is a criminal complaint and why did so many members of the press get it wrong?

“The criminal complaint is a charging document that is supported by the affidavit of a law enforcement agent that is intended to set forth and establish probable cause and that probable cause can be tested in a preliminary hearing,” said Randall Samborn, a spokesman for Fitzgerald’s office.

With an explanation like that, one might forgive journalists for not knowing the distinction.

The criminal complaint isn’t used very often, said Justin Schwartz, a professor at John Marshall Law School in Chicago.

“The law is confusing. Journalists are not lawyers,” Schwartz said. “A criminal complaint is a writing that describes the crime. You swear before the magistrate that something is true.”

In this case, an FBI agent outlined the evidence against Blagojevich in a 76-page document. So far, no one outside the U.S. attorney’s office has seen or heard this evidence, which means that until they bring it to a grand jury there can be no indictment and no trial.

In some cases a defendant can waive their their right to an indictment by grand jury, something the defendant might want to do if they plan to skip right to a plea agreement.

However, even in this case, the government must publicly present the details which outline the accused’s crimes and the evidence supporting the accusations.

A criminal complaint presents enough evidence to charge someone, but an indictment shows there’s enough evidence to bring someone to trial, and therefor meets a higher threshold of evidence.

So why didn’t Fitzgerald wait until he had an indictment?

“Fitzgerald doesn’t like to proceed unless he has every nail in the coffin,” Schwartz said.

The fact that he went forward without an indictment may indicate that his hand was forced by the speed of the governor’s alleged corruption.


“Governor Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree. We acted to stop that crime spree,” Fitzgerald said.

Since a grand jury can take a while to come to a decision, Fitzgerald may have wanted to put Blagojevich on notice before the governor appointed a replacement for Obama’s seat.

Racing against a possible senate appointment may have been only half of Fitzgerald’s worries. Last week, the Chicago Tribune reported that a close associate of Blagojevich had aided the government in recording the governor’s conversations. The story may have ended the usefulness of the bugs in Blagojevich’s office.

“After the story ran, we got a different conversation the next day, which basically says, undo what you just did,” Fitzgerald said. “So it was clear that the reaction to the story was to think that they shouldn't proceed down that road.”