‘You had a choice to make’: McClain’s defense attorney paints cooperating witness in ComEd trial as opportunistic

In intense courtroom moment, government’s star witness accused of saving his own skin

CHICAGO – About an hour before sunrise on a mid-January morning in 2019, two FBI agents arrived at the home of Fidel Marquez’s mother, where the longtime executive of Commonwealth Edison had been staying.

The agents played a series of recordings of wiretapped phone calls for Marquez, featuring Marquez himself. When other people in the house began waking up, the agents took him to a nearby strip mall parking lot to continue talking.

Over the course of two hours, the agents laid out the government’s theory that Marquez and his colleagues at ComEd had committed bribery by giving jobs and contracts to allies of powerful Illinois House Speaker Michael Madigan in exchange for the speaker’s help with the utility’s legislative priorities in Springfield.

As the sun rose on Tuesday, Jan. 16, 2019, Marquez grew “scared,” according to both his own testimony in front of a federal jury this week and one of the agents, who took the stand earlier this month. And by the end of those two hours, without first consulting a lawyer or any family members, Marquez agreed to become a cooperating witness in the government’s case. He would spend the next several months with his cell phone consensually wiretapped, arranging a series of meetings with his colleagues while wearing a hidden camera.

Four years later, with the eyes of his four ex-colleagues boring into him from their seats as defendants in a federal courtroom in Chicago, a defense attorney for ComEd’s former top contract lobbyist accused Marquez of choosing to save his own skin – despite not believing he and his associates did anything wrong.

“You had a choice to make,” Patrick Cotter, an attorney for Mike McClain, told Marquez as he neared his 20th hour on the witness stand Thursday afternoon. “You could either plead guilty …or you could have a seat over here.”

As he made his point, Cotter pointed to McClain and his codefendants, ex-ComEd lobbyists John Hooker and Jay Doherty, and the utility’s former CEO Anne Pramaggiore.

“So you made a different choice, didn’t you?” Cotter asked, his voice rising, to which Marquez responded, “correct.”

“You decided to become their worker,” Cotter said of the feds. “Take meetings when they wanted you to take meetings…Tell lies when they wanted you to tell lies. And you’ve done that for the last four years.”

Cotter noted that for the first year of Marquez’s cooperation with the government, he still insisted he had not done anything criminal, attempting to paint his eventual guilty plea in September 2020 as a purely opportunistic move to avoid prison time.

“You understood that if you persisted in saying you were innocent, you could be criminally charged and potentially face 30 years in prison,” Cotter said.

Marquez responded with the exact maximum prison sentence: “405 months,” which is “33 years and five months,” Marquez offered.

“You remember,” Cotter replied. “And you remember because it’s important to you.…that’s why you’re sitting where you’re sitting.”

Cotter reminded the jury that FBI agents did not record their initial two-hour conversation with Marquez.

“By the end of that two hours, you had decided, without consulting with anybody on the planet except possibly the two FBI agents, that you were going to cooperate with the government and…(wear) a recording device and (record) your friends and co-workers, right?” Cotter asked Marquez.

“Yes,” Marquez responded.

Earlier in the day, Cotter sought to weaken the government’s bribery case, which ties the jobs and contracts for Madigan allies directly to the utility’s legislative victories. He reframed McClain’s constant emails seeking assistance for job placement and following up on contract proposals as relationship maintenance with the speaker.

And Cotter pointed to the extensive lobbying efforts that went into both passing ComEd’s legislative priorities and defeating bills the utility feared would undermine its goals.

In early 2017, for example, a pair of democratic lawmakers had filed companion bills that ComEd believed would undo some of the wins included in the massive Future Energy Jobs Act passed after nearly two years of effort in December 2016.

Cotter showed the jury a series of emails involving McClain, Marquez, Hooker and others within ComEd, detailing what would become a multi-pronged plan to defeat the legislation. He then showed an internal spreadsheet showing ComEd’s budget for legislative strategy in 2017: $2,067,789.

Asked if that figure was unusually high, Marquez said it was less in some years.

“But never less than a million?” Cotter asked, to which Marquez replied “no.”

The next year, ComEd was worried about a bill pushed by Madigan’s daughter, then-Attorney General Lisa Madigan. The bill would have offered more breaks to low-income customers, but the utility viewed it as a cost shift for their other customers.

Using another series of emails and a wiretapped call, Cotter attempted to demonstrate just how much muscle ComEd was putting into its legislative strategy to defeat the bill, which they worried was picking up traction in the spring of 2018. Part of the worry was that Lisa Madigan was pushing the bill in her final year as attorney general, and outgoing politicians are often given help on “legacy” legislation.

“We’ve got to pull out all of the stops,” McClain told Marquez and Pramaggiore in that recorded call, noting Lisa Madigan’s team had been “working this pretty well and…have momentum behind it.”

McClain laid out another multi-pronged plan to activate ComEd’s allies in labor, mayors in ComEd’s territory, the utility’s vendors, large customers, faith leaders, and key members of the legislature to turn the tide on the bill. McClain also insinuated that Madigan had given his blessing to kill the bill a month earlier but one of the utility’s top lobbyists had squandered the opportunity, allowing its popularity to grow – especially within the legislature’s powerful Black Caucus.

Cotter on Thursday asked Marquez whether the level of strategy and detail put into defeating Lisa Madigan’s bill in 2018 was really necessary if, as the government alleges, ComEd had been bribing the speaker.

“At any point in this conversation, did Mike (McClain) say, ‘I’ll just go to the speaker because he owes us and he’ll pull it’?” Cotter asked.

Marquez confirmed that no, McClain did not suggest that route.

“Mike suggested a very sophisticated and extensive strategy of bringing in all the resources that ComEd could muster to try to lobby and defeat this bill,” Cotter said.

“Correct,” Marquez replied.

“And the bill was eventually defeated,” Cotter said, to which Marquez agreed: “Yes it was.”

“So the strategy worked,” Cotter offered.

Marquez again confirmed.

“Yes it did,” he said.

The trial continues at 11 a.m. on Monday.

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