Blagojevich legal hurdle: a crime, or just talk?

But talk is not enough. Any case will ultimately turn on the strength of the tapes, and whether the governor made it clear to any of the candidates for the Senate seat that he would give it only in exchange for something of value.

Several lawyers cautioned that the complaint presented last week was a snapshot of the evidence that Mr. Fitzgerald had amassed so far, in an investigation that is continuing.

In moving to arrest Mr. Blagojevich on Dec. 9, Mr. Fitzgerald acted without having presented his case before a grand jury. He is now likely to use such a panel to obtain additional witness testimony exploring whether anyone, including anyone in the Obama camp, had specific discussions with the governor’s office about filling the vacancy.

Mr. Fitzgerald’s decision to bypass a grand jury initially could signal a belief on his part that he did not yet have a fully prosecutable case on his hand, though it appears to have been prompted at least in part by the publication in The Chicago Tribune on Dec. 5 of an article that tipped off Mr. Blagojevich that investigators were listening in on his conversations.

Mr. Fitzgerald has also said he had been worried that if he did not intervene, Mr. Blagojevich might go ahead with some of his schemes, including appointing a successor to Mr. Obama.

In the wiretaps cited in the complaint, Mr. Blagojevich talked about what he said was an urgent need for political contributions and favors, but it was not clear whether he took concerted action to actually obtain anything in return for the seat. Several lawyers said Mr. Fitzgerald might need more evidence to prosecute Mr. Blagojevich over the issue.

“It’s a very difficult case for a number of reasons; not the least is the nebulous nature of the charges and the inherently difficult issues when you’re talking about a person executing his First Amendment right to promote a particular politician,” said Michael D. Monico, a former federal prosecutor who is now a criminal defense lawyer in Chicago.

“Merely thinking about something is not a crime,” said Mr. Monico, a lawyer for Christopher Kelly, a former Blagojevich fund-raiser who was indicted last year on tax charges. “Just talking about something is not a crime. You need another action for someone to commit a crime.”

Christopher Drew contributed reporting from Chicago.

This article, "Legal Hurdle in Blagojevich Case — Crime or Just Talk?", first appeared in The New York Times.

More on Rod Blagojevich  |  U.S. Senate

More from msnbc.com FirstPerson: Reasons why readers are thankful   Slideshow: Thanksgiving around the world Elkhart Project: Money pours in, pet adoptions increase Swine flu fears for hajj pilgrims On Twitter: Breaking news updates | Weird and wild

MORE FROM THE NEW YORK TIMES

The New York Times Section Front

NYT: Medical debt spurs more bankruptcies Health bill revives abortion groups Drug firms raise prices ahead of reform For thrillers, Glenn Beck is new Oprah Analysis: Victories rekindle GOP’s hope The New York Times Section Front