CQ TODAY ONLINE NEWS
Jan. 30, 2009 – 5:44 a.m.
Unconstitutional? Blagojevich Railroaded, Chicago-Style
By Bill Pascoe, CQ Guest Columnist
“We don’t want nobody nobody sent.”
That 60-year-old rebuff by a Chicago Democrat ward heeler to a prospective volunteer who boasted no ties to the Machine has ably served as the recruiting statement of the Chicago Machine ever since.
It encapsulates, in classically garbled syntax, everything that defines The Chicago Way: Exclusivity. Aggression. Certitude. Suspicion. Hints of a willingness to bend the rules. A determination to go it alone. Virtually criminal self-centeredness.
It is the tragic flaw in the character of former Illinois Governor Rod R. Blagojevich . It is what helped him rise to become a two-term governor of the nation’s fifth-largest state, and it is, ultimately, what brought him down.
For make no mistake about it — the impeachment trial that concluded with a unanimous vote to remove him from office was an unconstitutional exercise conducted by a political leadership that decided on an outcome and then went in search of an argument to justify it.
Consider:
The impeachment process began on Dec. 9, when U.S. Attorney Patrick Fitzgerald held a press conference to explain why federal agents had arrested Blagojevich that morning. Fitzgerald tantalized the assembled reporters with declarations about wiretaps of conversations proving that the governor had been engaged in a “corruption crime spree,” including his alleged attempts to sell the U.S. Senate seat vacated by Barack Obama .
Prior to that catalyzing event, no effort to remove Blagojevich had gone anywhere; though legislators in Springfield had engaged in backroom conversations for years about the prospects of such an action, nothing had ever come to fruition.
That one press conference on a cold December day was like firing a starter’s gun. In the blink of an eye, the leadership of the Chicago Machine moved quickly to get ahead of the story and excise the cancer.
Remember the Machine’s first attempt to remove Blagojevich?
Illinois Attorney General Lisa Madigan (daughter of Assembly Speaker and Illinois Democratic Party Chairman Mike Madigan) tried to have the Supreme Court declare Blagojevich “unfit” for office. The Illinois Supremes rejected the case out of hand, refusing even to hear arguments.
When that extra-constitutional attempt to remove Blagojevich failed, the Chicago Machine waited for the federal grand jury to issue its indictment. But then Fitzgerald surprised everyone by going before a federal judge and asking for more time to make his case to a grand jury. He got it.
With this second avenue blocked, a third way would have to be found. Hello, impeachment.
As happens with so much in politics, the decision to act was made before the justification for action was settled on. The Machine had concluded impeachment was necessary; now, the leadership realized, they would need grounds.
And that’s the next place they got themselves in trouble. Because the catalyzing event was Fitzgerald’s press conference, everyone assumed the corruption Fitzgerald alleged would serve as the grounds for impeachment. But Fitzgerald, fearing that his federal case could be blown, wouldn’t play ball, and refused to hand over evidence.
Fitzgerald then compounded the problem by publicly demanding that the legislative leadership not involve in the impeachment process any evidence or even witnesses to the alleged crimes with which he wished to charge the governor. They responded by including in the trial rules Rule 15(f), which essentially prohibited Blagojevich from calling as a witness anyone whose testimony could compromise the pending federal case. Since those crimes hadn’t yet been formally alleged, that had the effect of cordoning off a relatively wide swath of potential witnesses — witnesses Blagojevich claimed would exonerate him.
Worse, by allowing Fitzgerald to make a determination as to what would and would not be permissible in the impeachment trial, the legislative leadership acted in an unconstitutional manner: the Illinois Constitution — which, interestingly, contains not a single clue as to what are permissible grounds for impeachment of a governor — very specifically vests trial decision-making authority in the hands of the presiding chief justice and the senators. By allowing Fitzgerald to tell them what they could and could not do with regard to charges and/or evidence, they unconstitutionally ceded decision-making authority to an outsider.
But Rule 15(f) wasn’t the only trial rule that opened the impeachment trial to a constitutional challenge. Rule 8(b), for instance, says, “The House prosecutor or the Governor or his counsel may object to the admission or exclusion of evidence . . . No objection, however, may be made against all or any part of the House impeachment record filed by the House prosecutor with the secretary.”
Blagojevich contended that this essentially turned allegations (the impeachment record) into evidence, without allowing him the opportunity to challenge it.
Either or both of these rules could be challenged in a federal court as violations of Blagojevich’s 14th Amendment right to due process. Granted, this was not a criminal proceeding, and lower standards are set But courts have ruled that a state job holds a property right, and, therefore, depriving someone of a state job requires due process. It is not beyond reason to believe that a federal court could try such a case and determine that Blagojevich would have to be put back in the governor’s mansion.
But here’s what’s worse: even if one overlooks all the above, and merely looks at the arguments that were made and the evidence that was presented, the impeachment prosecutors still failed to make the case.
About the closest they came was with the evidence that Blagojevich sought campaign contributions from a hospital CEO and the owner of a racetrack, since those professional enterprises could benefit from state legislation. No evidence was ever presented to indicate that either individual had been told that gubernatorial action hinged on a campaign contribution, and no evidence was ever presented to indicate that the former governor himself was willing to demand the explicit quid pro quo. Instead, the prosecutors presented evidence that Blagojevich was pushing his aides to pressure the individuals for desired donations at the same time the state action was happening.
Coincidence of timing does not causation prove; in the old adage, the fact that the sun rises when the rooster crows does not prove that the rooster’s crow caused the sun to rise.
So an unconstitutional impeachment trial failed to present convincing evidence that Blagojevich had done anything warranting removal from office. And yet he was impeached by a unanimous vote.
Why?
Because they wanted to.
What really went on here had nothing to do with the 13 counts in the impeachment bill, and everything to do with incumbent legislators — who wish to remain incumbent legislators (read: they want to be re-elected) — deciding finally to take advantage of a political godsend and get rid of a guy who’d shown them nothing but contempt from his first day in office. Blagojevich brought it on himself — he never moved to Springfield, never cared enough to work the legislature, never gave a hoot what others thought. It was all about him, from Day One. And they resented it. Even the Democrats came to hate him. But they couldn’t do anything about it, because he was the governor, and he got re-elected by double digits, even while being upside-down on his job approval ratings.
And then one morning, they woke up, and they heard he’d been arrested, and they thought, “a-HA! We’ve got him now, boys!” And they opened impeachment proceedings.
And The Chicago Way won again.
Bill Pascoe is CEO of The Foundation for American Freedom a conservative think tank headquartered in Alexandria, Va.
Comments
What a silly column. The uninformed yammering in recent days on the Blago situation by some of our nation's "deep thinkers" has been alternately amusing and exasperating. The author first seeks to establish his expertise in Illinois politics by quoting a sixty-year-old chestnut from the late Milton Rakove ("we don't want nobody nobody sent"). What, no "Al Capone, bang, bang?" He then flexes his "credibility" by claiming the "Machine" was out to get Blago. Why? He doesn't say. If there still is a Machine in Illinois politics, Blago is a lifelong member. He's never held a job or position that didn't come through the influence of his powerful father-in-law, Chicago Ald. Dick Mell, or "Fast Eddie" Vrodylak, the soon-to-be jailed former chairman of the Cook County Democratic Party. Without any explanation, he asserts the impeachment was unconstitutional. How so? It was conducted under powers granted in the Illinois constitution. Was it a violation of the U.S. constitution? Then why didn't Blago challenge the action in either state or federal court. Can this poor soul not get a fair hearing anywhere in the United States? Why wasn't Blago impeached before? Simple. Until he left office earlier this month, Emil Jones, Blago's powerful Senate President ally, controlled the chamber with an iron fist. No Senate trial would ever have been convened as long as Jones was in power. Illinois is incredibly diverse, a microcosm of the United States. White, black, Hispanic. Urban, suburban, rural. Rich, poor, middle class. Right-wing, moderate, left-wing. Farther south than Richmond at the Kentucky border, farther north than Boston at the Wisconsin border. And here's how the elected representatives, GOP and Democrat, in this melting pot voted on the question: In the House to impeach, 117-1 (the lone no vote was Blago's sister-in-law). In the Senate to convict, 59-0. That's no railroad job. You couldn't get that kind of unanimity in the General Assembly on a resolution stipulating that the sun comes up in the east. Only Blago's disastrous tenure, and the clamor of 90% plus of Illinois voters who wanted him gone, could produce that kind of bipartisanship.
Worslinger, you got it exactly right. Thank you for disputing this ridiculous column. It is easy for outsiders to think they know IL government and politics, but you have to live here and work in or with the elected officials before you "know" what is going on in IL government. I am proud of the fact that I NEVER voted for the FORMER governor and those who did the second time should be ashamed of themselves. Governor Quinn is a breath of fresh air after 6 years of stench and corruption. Free at last!
Only someone not well-informed on Chicago/Illinois politics in general, and our now former governor specifically, could have written this column. Particularly given Fitzgerald's investigation, and all the background on Blago over the past couple of years. Stop prognosticting on something you, obviously, know little about.
Wow. This is an amazingly bad piece of analysis. I'm sure Pascoe is well qualified to discuss constitutional law in CQ, though, as he recently purchased the full first season of Law & Order on DVD.
Nicely put, Wordslinger. Pascoe: Must be nice to not have to know anything about a topic before you write about it. I wish I'd been told that in school - would have made those papers much easier.
http://www.ilga.gov/commission/lrb/con4.htm Go read section 14 of the Illinois Constitution: any sitting governor can be impeached by a 2/3 majority of the Senate. Period. There's no burden of proof, no requirement that the governor be required to call witnesses. Its a political process, and one that was absolutely necessary in the face of a corrupt governor who was more interested in polishing his public appearance than doing the work of the state. Blagojevich spent the last three weeks lying, dissembling, and trying to confuse his rights under the U.S. Constitution with his impending impeachment trial. Clearly, the author of this misguided screed has bought the lies, and its unfortunate that he's not alone.
What a crock. I'm no legal expert but I don't think impeachment is necessarily about a a crime as much as an offense. After being recorded saying what he was saying, whether or not an actual crime was committed, he lost all support. He was unable to lead, and he had cast his state in an extremely unfavorable light. He needed to be removed and that's what they did. By the way, there were attempts to remove Blago prior to his arrest -- or, more correctly, to take steps toward removing him. And this example also proves what a scumbag he is, not to mention providing another potentially impeachable act. Early in 2008 (probably sooner), several state senators started a push toward adding a recall amendment to the state constitution; this was clearly targeted at Blago, if only to say we can't let someone like this stay in office in the future. Two senators in particular, one representing Joliet and one for Pontiac, came out in strong support of the recall measure. At the time, the state had planned to close much of a prison in Joliet. Pontiac also has a prison. The Joliet senator backed off the recall talk; within weeks, the state announced plans to close Pontiac prison. Those plans are still in the works, though many hope they will be revisited now that Blago is out. Point is, he has no regard for the lives of the people he serves. He's willing to ruin an entire town because one person dares to oppose him. I'm all for civil rights and due process, but in this case, he needed to go. They got it done. Get off your high horse.
As a side note, if you're going to try to channel Royko and Kass (who effectively own the terms "Machine" politics and "the Chicago Way", at least give them some credit. And maybe try reading a little more about Illinois politics. Reading a few columns and an old copy of Boss hardly qualifies you to talk like you know it.
The citizens of Illinois have been trying to get rid of Blago for over a year. Unfortunately, they could not vote him out because there is no recall provision in the Illinois consititution. The legislature you accuse of railroading Blago refused to act untill Blago was arrested and shown the spotlight on Illinois. With Blago's approval ratings at 7%, the legislature finally acted on behalf of Illinois citizens.
Wordslinger seems to have it right. The columnist does not appear to have done his research in any meaningful way.
With the removal from office of now former Gov. Rod Blagojevich, I wonder where the compassion in this country is since I like many witnessed an overwhelming sense of glee coming from various politicos and pundits on-air concerning his case. To discredit this man in the court of public opinion, they used derogatory terms such as 'Blago' and 'Gov. F-Bomb'. To counter that, I have written numerous columns concerning Blagojevich for my blog. Do they not see that he was in affect tried in the media? Do they not see he was denied due process where a jury verdict is the one that counts most? The two not mentioned as this case unraveled were his young daughters. They, I feel the saddest for. The lesson he taught them best was never to give up a fight until the fight is finished. I suppose some in the Illinois state senate that convicted and threw him out of office either went home to pour a stiff drink hoping they are not the next one in the U.S. Attorney, Patrick Fitzgerald's sights. While those with a clear conscience so to speak poured themselves a celebratory drink. Either way, he is gone and I do pray that the state of Illinois will heal and move on. The true villain that I feel who should have been impeached is none-other than former Pres. George Bush. He lied us into a war, and every damn politician was too afraid of impeaching him when they had the chance after the 2006 mid-term election. Even House Speaker, Nancy Pelosi stated that any impeachment of Bush "Was off the table." At least former Gov. Rod Blagojevich's actions did not result in the countless deaths over in Iraq. In the end I do suspect that it will be Blagojevich who will be sent to prison. Somehow, our judicial system is warped. My prayers are with the Blagojevich family as a whole.
Wordslinger, effin golden.
Mary MacElveen, The voters elected Blagojevich and now the voters have dismissed him for a loss of confidence in his ability to govern. It was a lawful and peaceful process. The people have spoken. Yay Illinois! Yay democracy! The system worked.
While I don't agree with what the governor did, I do wish there had been a trial, or a fair and balanced uncovering of details with corresponding explanations before it was decided that the best route was a speedy impeachment. Does anybody else smell the blood of a sacrificial lamb for President Obama?
While the conviction/removal of ex-governor "Blago" is fully justified -based on the preponderance of evidence rather than (beyond) reasonable doubt- the state -indeed every other state!- would be well-served to have both an impeachment clause, with some minimal thresholds, and a recall provision.
Guys, pay attention:
IMPEACHMENT IS A POLITICAL PROCESS
Any sitting governor can be impeached with a 2/3 majority vote by the senate under the Illinois Constitution. Just because its called a "trial" doesn't mean there's any requirement for proof or evidence.
What you're doing is spreading Blago's lies and dissemblance.
Blago will have every right afforded to him under the U.S. Constitution, to a fair trial, to presumption of innocence, to call witness, everything, during his criminal trial which has yet to begin.
> Blago will have every right afforded to him under the U.S. Constitution, to a fair trial, to presumption of innocence, to call witness, everything, during his criminal trial which has yet to begin. Blago's right to due process and a fair trial was seriously undermined from Day 1 by Patrick Fitzgerald's grandstanding press conference after Blago's arrest, where he eviscerated Blago in the court of public opinion with extrajudicial comments that were in blatant violation of U.S. Department of Justice guidelines. http://online.wsj.com/article/SB122913032247103429.html
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