Fitzgerald has said he will retry the case.

Federal authorities arrested Blagojevich in December 2008 after recording him voice plans to profit from appointing a replacement to the U.S. Senate seat vacated by president-elect Barack Obama.

"I've got this thing and it's f-----g golden, and, uh, uh, I'm just not giving it up for f----n’ nothing. I’m not gonna do it,’’ Blago said in weeks leading up to the November 2008 election.

But James Matsumoto, the jury foreman in the Blago trial, said Tuesday that the government failed to deliver a “smoking gun."

And without it, Blago’s blather sounded just like any other Chicago politician invoking the local rules of pay-to-play.

"People were not going to convict the Governor based on the lightness of the government’s case,"’ Defense attorney Joseph Lopez said on Chicago Tonight Tuesday. "…These are ward politics, this is how it works in the state of Illinois. So it's not shocking to a lot of people that a Governor or another politician is gonna to sit there and say, 'If you do this for me I’ll do this for you.'

And while Lopez is right – yes, Chicagoans know that’s the game – that's not the same thing as saying they accept them. Rather, they want the rules applied consistently across the board.

But ever since Blago’s early morning arrest in December 2008, there's been a waft emanating from the case suggesting Fitzgerald may have played politics.

First, the notoriously tough U.S. Attorney may have jumped the gun by arresting Blagojevich before any actual deal was cut to curry favor with the incoming administration.

Second, in trying the case, Fitzgerald deliberately avoided calling players close to the president.

Among those considered for Obama’s Senate seat was Obama’s close advisor Valerie Jarrett who was apparently interested in the appointment. And the White House’s Chief Of Staff Rahm Emmanuel reportedly gave Blago a list of names “acceptable” to the president-elect for the post.

Despite this, neither Jarrett nor Emmanuel were called to testify against Blagojevich. Nor was real estate developer Tony Rezko who was a fundraiser for both Obama and Blagojevich since convicted of extorting money from businesses seeking to use his influence to land state contracts.

By not calling these reigning political insiders to testify about their roles in seeking the Senate seat, Fitzgerald weakened his case and cost him the trial.