Calling FBI mole Danny Solis to testify could be risky, ‘blow back’ on ex-Ald. Ed Burke’s defense in corruption case, experts say

In video after video, jurors in Ed Burke’s federal corruption trial have gotten an unfiltered view of a Chicago powerhouse.

Burke, pink-faced and impeccably dressed, swears and swaggers and schmoozes. He waxes eloquent about Chicago history. And, federal authorities allege, he speaks about extracting private law business from people with issues at City Hall as casually as if it’s the weather.

Daniel Solis, the man wearing the hidden camera, is seen only in flashes: jittery close-up views of his wristwatch, his fidgety fingers, the zipper of his jacket.

But next week, jurors could finally meet him.

Burke’s own attorneys could call the alderman-turned-FBI mole as a witness as early as Monday. The crucial decision to put him on the stand will shape the rest of Burke’s landmark racketeering trial.

It would be a chance to try to undermine Solis’ credibility, and by extension the highly damaging recordings he made. But that strategy could blow back on Burke just as easily, experts told the Tribune.

“It’s a bit of a chess game,” said Nancy DePodesta, a former federal prosecutor now in private practice. “The government made the first move and decided not to call Solis … If the defense doesn’t call Solis then they’re left with the tapes, (and) you don’t get to cross-examine the tapes.

“It’s obviously risky, and it could backfire that they’re calling Solis,” she continued. “But on the other hand, maybe it’s a bit of a Hail Mary.”

Prosecutors decided months ago not to put Solis on the stand, apparently betting that the recordings would speak for themselves. While Burke’s attorneys told U.S. District Judge Virginia Kendall last month they planned to call Solis, during the subsequent opening statements they conspicuously avoided telling jurors they would be hearing from him. That left the door open for the defense lawyers to change their minds, and many observers figured they would not take the risk of calling him after all.

But in court Thursday, Burke attorney Chris Gair was adamant that Solis would be their marquee witness.

He plans to question Solis for “hours” about the recordings alone, he said, and will elicit details about Solis’ nigh-unprecedented deal with the U.S. attorney’s office. That deal will ultimately leave him without a criminal conviction and still collecting his $100,000 annual pension.

“I can guarantee you, judge, anything about what deal he got and what crimes he committed, that is going to come (out) at the end,” Gair told Kendall.

In a filing Saturday, prosecutors reiterated that the defense cannot call a witness “in a thinly-veiled effort to attack the government’s case by attempting to criticize the government for using such an individual as a cooperator” — that is, they aren’t allowed to put him on the stand just to smear him.

They want Kendall to strictly limit the kinds of questions Burke’s attorneys can ask Solis, and suggest that defense attorneys should offer a more complete preview of what they expect him to say.

The defense also should not be allowed to ask Solis about the details of his cooperation deal, either, prosecutors wrote. But if they are, prosecutors want to elicit testimony that Solis’ cooperation extended beyond just Burke, to show that he had other “bargaining chips” to play in negotiating his deferred-prosecution agreement.

In calling Solis, experts told the Tribune, Burke’s defense is playing a wild card.

“It really sets the table for the government to emphasize that the things Burke said on the recordings … were the product of his own volition and mindset,” said Dylan Smith, a former federal prosecutor who works in white-collar criminal defense. “To the extent the defense calls Solis to try to dirty him up, that could blow back on Burke as much as on the government’s case.”

The 14-count racketeering case alleges that Burke used his significant City Hall power to try to get business for his private law firm from developers of the Old Post Office, owners of a Burger King in his Southwest Side 14th Ward and a developer desperate to install a sign for a Binny’s Beverage Depot on the Northwest Side.

He is also accused of threatening to block an admission fee increase at the Field Museum to retaliate against officials who failed to give a paid internship to a daughter of one of his longtime City Council allies.

The Solis recordings are related only to the alleged Old Post Office scheme, which was the longest-running and potentially the most lucrative — though Burke’s attorneys have emphasized that, in the end, Burke’s firm never actually got a dime from the developers he is accused of trying to extort.

The recordings have Burke saying lines that have surely stuck in jurors’ minds: He was “not motivated” to help the developers, he said, since “the cash register has not rung yet.” When the developers dragged their feet, he told Solis “as far as I’m concerned they can go (expletive) themselves.” And perhaps most memorably, he asked Solis on a wiretapped call: “So did we land the, uh, the tuna?”

But long before Burke was charged, the FBI had their eyes on Solis.

Or, more accurately, their ears: They had been listening to his phone calls for months, and they had heard the alderman solicit everything from campaign donations to sexual services at a massage parlor.

Then on the morning of June 1, 2016, two agents showed up at his door with the proof. He agreed to cooperate shortly afterward, eventually becoming one of the most prolific FBI moles in Chicago history.

He helped build cases not only against Burke but also against ex-Illinois House Speaker Michael Madigan, who faces his own racketeering trial in the spring. The videos Solis recorded of Burke provided some of the strongest evidence of prosecutors’ allegations that the alderman abused his power in order to get business for his private law firm.

In exchange, Solis got a remarkable deal. The U.S. attorney’s office agreed to a deferred-prosecution deal, meaning Solis will see his single charge dropped in 2025 if his cooperation continues.

The scandalous details that led Solis to flip, as well as the sweet deal he got afterward, left Burke’s attorneys eager to question his motives.

“We don’t deserve to be defense lawyers if we can’t get Danny Solis to say that his motivation for making these tapes was to save his own skin,” Burke attorney Gair told the judge last month.

And in opening statements, Gair told jurors that Solis was “Exhibit A in the world of people who are corrupt and untruthful.”

“The government told him what to say and then he spit it back at Ed Burke, a whole pack of lies, and he did it for two years with one object in mind: keep himself from going to prison,” Gair said.

The defense might want to question Solis in a strategic attempt to smear his credibility, and “in that sort of intangible way, try to taint the government,” Smith recently told the Tribune.

Burke’s attorneys also could call Solis “as part of developing this overarching theme of the government being overzealous,” Smith said. “The defense might try to argue that it reflects a single-minded determination to get Burke.”

Solis certainly comes with “a lot of baggage,” DePodesta told the Tribune. “They can dirty him up.”

But, both DePodesta and Smith said, smearing Solis is risky when it is so obvious that he and Burke were close. Any claims about a cooperating witness’s flaws are almost inevitably followed by the classic prosecution response: “Well, we didn’t choose him, the defendant did.”

“It was the defendant who chose Danny Solis, it was his colleague,” DePodesta said the prosecution could argue. “Because that’s who the defendant surrounded himself with, that’s who the defendant confided in.”

In opening statements, Burke’s attorneys painted Solis as a scheming manipulator, stringing Burke along with promises of a payday.

But by now it is obvious to jurors that Burke had significant power. “The idea that Burke was led around by the nose by Solis may be a little difficult to sell to the jury,” Smith said.

The defense could call Solis in hopes that he provides context to the recordings that might paint Burke in a better light. Solis had the unusual power to stop and start the recording equipment he was wearing, according to an FBI special agent who testified earlier in the trial. Putting Solis on the stand could give the defense a chance to probe what happened while the camera was turned off.

That still could leave them with answers they don’t like — answers that highlight or reinforce the quid-pro-quo version of Burke that prosecutors have highlighted on the videos.

And Solis is an experienced politician, having spent more than two decades on the City Council before announcing his retirement in 2018, before news of his cooperation erupted into public view.

While he might not come off as likable, given his significant baggage, he is no stranger to hard questions or public speaking, DePodesta said.

“He has the ability to be convincing and charming, absolutely,” she said. “Convincing, charming, and presumably credible.”

The Solis matter looms as Burke’s trial enters its sixth week. Prosecutors are expected to rest their case in chief on Monday or Tuesday, at which point the defense will have a chance to put on witnesses.

Defense attorneys often wait until after prosecutors have rested to decide which witnesses to present. If they feel they have made all their points during cross-examination of government witnesses, they might not call any at all.

Still, Burke and his co-defendants are expected to have at least a day or two of witnesses besides Solis, who could be on the stand for days. Calling him means the trial could stretch past Christmas.

Burke, 79, who served 54 years as alderman before leaving the City Council in May, is charged with 14 counts including racketeering, federal program bribery, attempted extortion, conspiracy to commit extortion and using interstate commerce to facilitate an unlawful activity.

Co-defendant Peter J. Andrews, 73, is a longtime Burke confidant accused in the Burger King matter. He is charged with one count of attempted extortion, one count of conspiracy to commit extortion, two counts of using interstate commerce to facilitate an unlawful activity and one count of making a false statement to the FBI.

A third defendant, Lake Forest developer Charles Cui, 52, is charged related to the alleged pole sign scheme. He faces one count of federal program bribery, three counts of using interstate commerce to facilitate an unlawful activity and one count of making a false statement to the FBI.

Solis, meanwhile, is still getting his government pension. And his deal in exchange for cooperating is perhaps unprecedented. He was charged in a one-count criminal information with corruptly soliciting campaign donations from a real estate developer in exchange for zoning changes in 2015, when Solis was head of the City Council’s zoning committee. That charge will be dropped in 2025 if Solis continues to cooperate.

In going undercover, Solis had become only the second sitting alderman believed to have worn a wire for prosecutors in a corruption investigation.

The first, Ald. Allan Streeter, was the dean of the council’s Black Caucus when he agreed to wear a wire for the FBI as part of the Silver Shovel probe in the 1990s.

Streeter, as in Solis’ case, flipped only after he was confronted by federal investigators with damning tape recordings. In addition to wearing a wire, Streeter provided authorities with details of questionable activities of other public officials and valuable insight into the workings of the City Council, prosecutors said at the time.

Whether or not Solis is called in Burke’s trial, his work is not done. His recordings are expected to play a significant role in Chicago’s next major public corruption trial: Ex-Speaker Madigan is scheduled for trial in April.

Madigan was, in fact, the government’s intended target at the time Solis agreed to cooperate.

In late July 2016, the FBI traveled to the Democratic National Convention in Philadelphia, where Solis was a delegate, according to testimony last month from FBI Special Agent Ryan McDonald.

While Solis did not record Burke at the convention, McDonald testified he told them in one of the debriefings that Burke had approached him at a caucus breakfast and asked about a local contractor, Heneghan Wrecking, possibly getting some of the post office project demolition work.

McDonald testified that after the convention, agents directed Solis to keep the conversation about Heneghan going. That led to the first recorded call involving the Burke probe — just days after they returned to Chicago.

That ballooned into a plethora of evidence about the alleged Old Post Office scheme. And Solis continued cooperating for months after that, against both Burke and the even bigger target, Madigan.

In the spring, federal prosecutors — and perhaps Madigan’s attorneys — will also have to decide whether to call Solis as a witness. If he hits the stand in Burke’s case, they will surely be watching.

jmeisner@chicagotribune.com

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