Michael Madigan file photo (WTTW News)

Federal prosecutors argued ex-Illinois House Speaker Michael Madigan and his longtime confidant and current co-defendant Michael McClain should not be tried separately later this year, as it would give each man the ability to “blame a missing person.”

Prosecutors late Tuesday filed their response to McClain, whose attorneys last month filed a motion seeking to sever his case from Madigan’s before the men are set to go to trial on racketeering charges later this year.

McClain in his motion argued that Madigan could try to point the finger at him during trial, but prosecutors contend that Madigan would also benefit from the cases being tried separately.

“This makes it obvious that Madigan, even though he has not joined the motion, wants severance just as badly as McClain, for it will allow him (and McClain at his own trial, if there were one) to do precisely what the Seventh Circuit has cautioned joinder is meant to avoid: blame the absent defendant,” assistant U.S. attorneys wrote in the 11-page response.

The longtime House speaker is accused of participating in, and benefitting from, a variety of corruption schemes. Among the charges he’s facing are counts of racketeering conspiracy, using interstate facilities in aid of bribery, wire fraud and attempted extortion.

In his severance motion, McClain’s attorneys argued that because he and Madigan could present antagonistic defense theories, a jury hearing a joint trial would be forced to “reject one or the other to find either Defendant not guilty.”

“Because of this situation, there is a serious danger, if not an inevitability, that the jury will decide the case by choosing which of the two defense theories they believe to be stronger, instead of deciding whether the Government has proven its case beyond a reasonable doubt,” McClain’s attorneys wrote.

Prosecutors contend that appeals courts have “consistently rejected” the claim that antagonistic defenses merit severance and that limiting instructions should be sufficient to “cure any risk of prejudice.”

McClain also argued that, because of this, Madigan’s own defense team would essentially act as a second set of prosecutors against McClain. Federal prosecutors, however, contend the defense strategies of the two men “are not going to be flatly inconsistent with each other” and argued this does not warrant a trial severance.

“Madigan has not admitted a single thing that occurred here was a crime, on the contrary, he has affirmatively denied it,” prosecutors wrote. “Neither defense team can be accurately characterized as “prosecutors” under these circumstances. To be sure, Madigan perhaps contemplates, as an alternative additional argument, throwing McClain under the bus by asking the jury to blame McClain in case they find something illegal happened (which he flatly denies); that does not make him some sort of “second prosecutor” by any stretch.”

The case was initially set to go to trial earlier this year, but it was delayed until after the U.S. Supreme Court could rule in a separate case in which it narrowed the scope of federal bribery statutes.

McClain is currently awaiting sentencing in the “ComEd Four” bribery case after he and three others were convicted last year of conspiring to bribe Madigan. That sentencing has been delayed repeatedly, and defense attorneys are hopeful the Supreme Court’s recent ruling could lead to those convictions being tossed out.

Madigan and McClain are currently set to go to trial Oct. 8.

Contact Matt Masterson: @ByMattMasterson | [email protected] | (773) 509-5431