Law360 (January 15, 2021, 9:25 PM EST) -- Illinois federal prosecutors slammed a bid by former Commonwealth Edison Co. executives and lobbyists to access grand jury selection materials in their bribery case, arguing the request is based on the "mistaken conjecture" that additional jurors were improperly selected during the coronavirus pandemic.
Former ComEd CEO Anne Pramaggiore, former ComEd lobbyists Michael McClain and John Hooker, and consultant Jay Doherty were indicted in November on charges of conspiring in a bribery scheme to push for energy regulation favorable to the utility.
They sought to access grand jury selection materials, claiming in a December filing that jurors chosen during the coronavirus pandemic may not be representative of the community because COVID-19 has disproportionately affected certain populations' economic and physical health, leading to a whiter, younger and more male grand jury.
Prosecutors responded Friday by maintaining that no jurors were added after the grand jury was initially convened in January 2019 — over a year before the coronavirus pandemic began to sweep over the U.S. — and that therefore COVID-19 could not have affected the grand jury selection whatsoever.
"The pandemic could not have compromised the selection of jurors as defendants theorize, and therefore, defendants cannot make a showing of a likely 'substantial failure' in the selection process of grand jurors brought on by the COVID-19 pandemic to justify their discovery requests," the government said.
"Defendants do not have an unfettered right to examine records relating to the selection of grand jurors," it added.
Prosecutors charged Exelon subsidiary ComEd with bribery in July, when the utility agreed to pay $200 million to end an investigation into a yearslong scheme in which it arranged jobs and other benefits for allies of "Public Official A" — identified not by name but as the speaker of the Illinois House of Representatives, implicating powerful, longtime House Speaker Mike Madigan — in exchange for his support on legislation it favored. Prosecutors said the benefits to the company exceeded $150 million.
Madigan — a Chicago Democrat who is arguably the state's most powerful politician, having served as speaker for all but two years since 1983 — has denied any wrongdoing and said he will cooperate with federal investigators.
Prosecutors say the defendants conspired from about 2011 to 2019 to arrange jobs, vendor subcontracts and payouts for Madigan associates "even in instances where those individuals performed little or no work that they were purportedly hired to perform for ComEd," and covered their tracks by creating false records to disguise the nature of the payments.
ComEd was seeking the speaker's support in that time frame for legislation that would benefit the utility, including the Energy Infrastructure and Modernization Act, a 2011 bill that set up a regulatory process through which it could more reliably determine rates to charge and how much money it could generate from its operations to cover other costs, such as grid infrastructure improvements, prosecutors say. The utility also successfully pushed for the passage of the Future Energy Jobs Act in 2016, to renew that beneficial regulatory process, they say.
A government spokesman and attorneys for Pramaggiore and McClain declined to comment.
Counsel for the other defendants did not immediately respond Friday afternoon to requests for comment.
The government is represented by Amarjeet S. Bhachu, Diane MacArthur, Timothy J. Chapman, Sarah E. Streicker, Matthew L. Kutcher and Michelle Kramer of the U.S. Attorney's Office for the Northern District of Illinois.
Pramaggiore is represented by Scott R. Lassar, Daniel C. Craig and Jennifer M. Wheeler of Sidley Austin LLP.
McClain is represented by Patrick J. Cotter and David P. Niemeier of Greensfelder Hemker & Gale PC.
Hooker is represented by Michael D. Monico, Barry A. Spevack, Jacqueline S. Jacobson and Ryan W. Mitsos of Monico & Spevack.
Doherty is represented by Michael P. Gillespie of Gillespie & Gillespie and Gabrielle R. Sansonetti of the Law Office of Gabrielle R. Sansonetti.
The case is U.S. v. McClain et al., case number 1:20-cr-00812, in the U.S. District Court for the Northern District of Illinois.
--Additional reporting by Celeste Bott. Editing by Michael Watanabe.
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