FBI WIRETAP:
FBI had Burke’s cellphone tapped for at least 8 months, according to charges
Burke’s own words may come back to haunt him as tap lasted at least eight months.
Longtime Ald. Edward Burke has spent decades at the pinnacle of the city’s power structure, but in the end, he may have buried himself with his own words.
The FBI had Burke’s cellphone tapped over at least an eight-month period, and during that time, at least 9,475 calls were made or received on the phone, according to the bombshell corruption charges unveiled Thursday.
Agents were listening in as the powerful Finance Committee chairman allegedly talked about extorting two executives seeking to renovate a fast-food restaurant in Burke’s ward. When the businessmen didn’t seem to be cooperating, Burke plotted with a ward staffer on how to play “hardball,” holding up permits and sending a city worker to the site to harass them with unwarranted citations, according to the charges.
Legal experts who spoke to the Chicago Tribune said the fact that Burke himself was captured on recordings allegedly talking about the shakedown scheme makes it an extremely difficult case to defend — if not a slamdunk for the government.
“Recordings always make a case more difficult, because how do you argue that your guy didn’t say it?” said Steven Greenberg, a veteran criminal defense attorney. “You can’t. So now you are stuck arguing about what he meant.”
But of all the details to be gleaned from the 37-page criminal complaint, the most stunning might be that federal authorities were surreptitiously listening to Burke’s private conversations for so long, according to several criminal defense attorneys and former federal prosecutors who spoke to the Tribune.
“That’s a lot of calls over a really long period of time,” said Christopher Grohman, a criminal defense attorney who handled numerous wiretap cases as a federal prosecutor. “They typically don’t like them to go more than 90 days. … Eight months is very strange.”
In addition, the chronology laid out in the charges makes it clear that the FBI was already up on Burke’s phone before the first call involving the alleged extortion plot occurred on May 23, 2017. That call was referred to in the complaint as “Session 309,” meaning the 309th call either to or from Burke’s phone since the wiretap was first approved, Grohman said.
While many of the calls were undoubtedly unrelated to the investigation — such as hang-ups, wrong numbers or calls to relatives or friends about personal matters — those details signaled there is more to the Burke investigation than what prosecutors chose to make public in the complaint, the legal experts said.
“It would seem to me that there was something else they were looking at and this extortion just fell into their lap,” said Greenberg, who has handled many cases involving wiretaps. “You can’t just start listening in on someone’s phone calls. You have to have evidence of criminal activity going on. … So the question is what evidence did they already have?”
The charges accuse Burke of using his position as alderman to threaten to shut down the renovation of a Burger King at 40th Street and Pulaski Road unless executives for the company that owned the franchise hired Burke’s private law firm to handle tax appeals for dozens of its restaurant sites in the Chicago area.
The complaint also alleges that Burke pressured one of the company’s executives in December 2017 to contribute to the campaign of an unnamed local politician. Sources identified the politician as Cook County Board President Toni Preckwinkle, who is running for Chicago mayor.
Burke, who was released Thursday on a $10,000 unsecured bond, has yet to enter a plea, but his attorney, Charles Sklarsky, said the allegations were meritless.
“The transaction described in the complaint does not make out an extortion or an attempt to extort,” Sklarsky told reporters. “We look forward to a prompt day in court to prove the innocence of Ald. Burke.”
Veteran attorneys, however, say the wiretap evidence makes mounting a defense an uphill battle.
Greenberg said he did see some wriggle room to argue that Burke never explicitly demanded that his law firm be hired before the renovations could continue. He also might be helped by the fact that, in the end, the Burger King revamp was completed without the company ever hiring Burke’s firm.
But the consensus was that the U.S. attorney’s office in Chicago — which has a near-perfect track record when it comes to winning convictions in public corruption cases — would never have brought the case against Burke unless it was thought to be rock-solid.
“Anyone who has been through the office knows they are not taking a shot like this against a guy like Burke unless they got it nailed,” said one former prosecutor who asked not to be named. “You don’t just present cases that meet the minimum threshold. These things are thoroughly scrubbed.”
That is particularly true in cases involving wiretaps, which are treated by the courts as an investigative method of last resort and require proof not only that a specific crime was being committed but also that the target was using a particular phone to do so, the experts said.
In applying for a wiretap, prosecutors must demonstrate that there is no other way to document the crime, such as with subpoenas of records or emails or testimony by informants. They also need to show that the target phone has been “in contact with at least two other phone numbers which are involved in a crime,” Grohman said.
The exhaustive application process is first reviewed by a specialized division of attorneys at the U.S. Department of Justice in Washington, who often send documents back with questions and revisions, Grohman said. It then must be signed off on by a deputy attorney general before going before the chief federal judge in Chicago for final approval.
Once agents are up and listening in on a phone, they are required to provide meticulous details to the chief judge every 10 days that they are indeed gathering evidence of criminal activity to keep the recording ongoing, Grohman said. The wiretap expires after 30 days, and to renew the recordings for another month, the application must be submitted all over again, documenting why the extension is justified, he said.
With all the hoops that need to be jumped through, Grohman said, prosecutors don’t seek to tap a phone unless they know they have a case.
“You don’t bring it unless you’ve got it,” he said.
The complaint quotes Burke in a handful of conversations from May 2017 to January 2018 talking in surprisingly blunt language about the alleged extortion of the out-of-state businessmen, whom the alderman did not know well.
The first phone call came on May 23, 2017, and went to voicemail.
“Ah, we have an application that’s been made for remodel and I think it’s stuck in your office or something,” one of the executives said, according to the criminal complaint. “So please give me a call, I’ll give you all the details.”
Burke later asked a city employee to look up which law firm the restaurant company used to handle its property tax appeals.
“I want somebody at the law office to check to see who’s filed with the assessor of the board on that one,” Burke told the employee, identified only as City Employee 1.
A month later, Burke lunched with the executives at the swanky Beverly Country Club on 87th Street and Western Avenue as the FBI conducted surveillance outside, according to the complaint.
“During the lunch, Burke told his guests about his law firm and explained that (it) handled property tax reductions,” the complaint says. One of the executives “read between the lines” and surmised that Burke was soliciting business for his law firm in exchange for his help with the restaurant permits, the complaint alleges.
Two weeks later, one of the executives called Burke’s cellphone with an update. He told the alderman that they had completed a land survey that confirmed that a parking lot adjacent to the Burger King was indeed part of their lot, the charges allege.
“Oh, that’s good. So I made you a half a million bucks,” Burke said before steering the conversation back to the expected business for his tax firm, according to the complaint.
Seven months later, in January 2018, Burke made the last call mentioned in the charges — a conversation with his trusted ward staffer about the status of the Burger King project, which at the time appeared to be dormant.
“I thought we gave them, um, clearance on that?” Burke asked, according to the charges. “… It’s just sitting there with uh, nothing going on.”
In May, one of executives told another official at the company that they “had to hire Burke’s firm because they needed to ensure that the restaurant could continue in business without interference from Burke,” the complaint alleges.
By midyear, the work on the restaurant was completed, however, and the company did not end up giving Burke’s firm any business.
“Recordings always make a case more difficult, because how do you argue that your guy didn’t say it? You can’t. So now you are stuck arguing about what he meant.” — Steven Greenberg, veteran criminal defense attorney