An attorney told the judge in former Illinois Gov. Rod Blagojevich's corruption case Tuesday that FBI agents improperly recorded 208 phone conversations between the former governor's brother and his wife, some "of the most intimate nature."
"My client is appalled," said defense attorney Michael Ettinger, who represents the governor's brother, businessman Robert Blagojevich.
Ettinger asked U.S. District Judge James B. Zagel to bar federal prosecutors from using the conversations between Robert Blagojevich and his wife, Julie, as evidence if the case goes to trial.
He said in court papers that "some of these recorded conversations involve private matters of the most intimate nature" and were plainly covered by a doctrine of "marital communication privilege."
Ettinger also said 88 of the 1,524 calls intercepted by the FBI from Robert Blagojevich's phone were from his son, Alex. He said they also should be ruled out if the case goes to trial.
Federal prosecutors could not be immediately reached for comment.
The former governor is accused in a federal racketeering indictment with scheming to trade or sell President Barack Obama's former U.S. Senate seat and campaign fundraising abuses. He has pleaded not guilty. Zagel has set June 3 for trial.
Robert Blagojevich is charged with two counts of wire fraud for allegedly scheming with his brother to sell the Senate seat and illegally pressure a racetrack owner for a campaign contribution. He has also pleaded not guilty.
Ettinger said the agents who monitored Robert Blagojevich's cell phone had a court order but also were under "minimization" instructions from the U.S. attorney's office. The instructions were designed to minimize monitoring of conversations that plainly had nothing to do with the case under investigation.
The conversations between Robert Blagojevich and his wife should be ruled out as covered by the doctrine of marital communication privilege and because the agents could tell they were of an innocent nature.
The conversations with his son also were clearly of an innocent nature and also should not have been monitored, the attorney said.
Zagel could take up the matter at the next hearing, scheduled for Jan. 27.