Defense in Madigan corruption trial scores a victory as judge strikes some testimony from key witness

The federal judge presiding over the corruption trial of former Illinois House Speaker Michael J. Madigan agreed to toss a small — but potentially key — piece of testimony Wednesday that put Madigan’s co-defendant in the room with him during discussion of a ComEd bill.

It’s a victory for Michael McClain, the longtime ComEd lobbyist who was also known as an emissary of Madigan’s around the Illinois State Capitol. And it wound up being the first of two notable defense attacks on the feds' case Wednesday. But it likely did limited damage.

It came during the ongoing testimony of former longtime Madigan aide Will Cousineau.

Cousineau testified Wednesday about his role in efforts to pass the Future Energy Jobs Act in late 2016. The bill is among those that helped turn ComEd’s fortunes around in the previous decade, jurors have heard.

However, Cousineau told the panel Wednesday that he’d done a “roll call” of support in the Illinois House of Representatives as a vote neared on the bill, and he didn’t believe there were enough votes to pass it. He said he gave the news to Madigan by phone.

But Cousineau also testified that he believed McClain was with Madigan at the time.

“I don’t recall specifically how I knew that,” Cousineau said.

McClain attorney Patrick Cotter seized on Cousineau’s lack of recall, arguing that U.S. District Judge John Blakey should toss the testimony.

During a break in the trial, Blakey wound up having Cousineau get back on the witness stand so Assistant U.S. Attorney Julia Schwartz could ask him about it without jurors present.

“I’m just giving you my best recollection,” Cousineau said. “I don’t recall exactly how it went — if Mr. McClain said something, if the Speaker said Mike was there. I don’t have a recollection. My best recollection is just that Mr. McClain was with the Speaker.”

Schwartz offered Cousineau a transcript of his previous testimony before a grand jury, but he said his answer Wednesday was consistent with the answer he’d given then.

With Cousineau out of the courtroom, Cotter predicted that prosecutors would use the testimony to show “Mr. Madigan taking action to assist ComEd on the FEJA vote” — and that it would put McClain in the room without proper support.

Schwartz argued that Cousineau had “certainty” that McClain was there, he just didn’t remember why.

“I don’t think he’s certain,” Blakey said.

When jurors returned to the courtroom, Blakey read Cousineau’s testimony about McClain’s presence during the phone call back to the jury. He told them, “You’re supposed to totally disregard, and that is my instruction.”

Cousineau’s testimony then continued, with Cousineau telling jurors that McClain thanked him for helping pass FEJA.

A second argument broke out later Wednesday about testimony prosecutors had elicited about Madigan's sway over district boundaries and campaign contributions. Defense attorneys complained, among other things, that such activities are protected by the Constitution.

But they caught the judge's attention by complaining that prosecutors hadn't put them on notice that Madigan's "ability to fund, or de-fund, other legislators' campaigns was a power that [Madigan] utilized in this case." They said they would have cross-examined some witnesses differently.

"They're saying they didn't get notice that that was going to be your theory," Blakey told prosecutors. "It's in the indictment. But that's not enough. Where have you given notice?"

Prosecutors denied there was any surprise, but they asked for time to review their files.

"We are entitled to actually explain to the jury why Mike Madigan's so powerful," Bhachu said.

Madigan is accused of leading a criminal enterprise designed to enhance his political power and enrich his allies and associates, with McClain as his agent. A key pillar of the case is a bribery scheme involving ComEd, in which McClain has previously been convicted.

Prosecutors continued trying to connect Madigan and McClain on Wednesday, including through Cousineau’s testimony. Earlier in the day, jurors heard a secretly recorded phone call in which Madigan met with members of his staff — and McClain.

McClain spoke during that call about doing things without Madigan’s “fingerprints.”

“I think he’s talking about protecting people, protecting allies, without the Speaker’s fingerprints,” Cousineau testified.