At least one Illinois Senator appears to understand that the rigged rules of the Senate impeachment trial of Rod Blagojevich, do not allow Blagojevich a fair trial. The Chicago Sun-Times reports that Sen. Rickey Hendon wants to ensure that Blagojevich gets a fair trial and “is upset that senators are being asked to impeach Blagojevich in part on policy matters on which they previously supported the governor: expanding health care for children, creating a prescription drug program for seniors and procuring flu vaccines from outside the U.S..”

Hendon’s concern that alleged criminal conduct has been lumped together with alleged political misconduct, is correct. The legislature put the two together because to separate out the criminal and non-criminal allegations would reveal the weakness of the case against Blagojevich. As to the criminal allegations, the legislature cannot permit a full trial because U.S. Attorney Patrick Fitzgerald will not allow testimony or evidence that pertains to the criminal case. As to the non-criminal allegations, the “abuse of power” is nothing more than the normal push-and-pull between a legislature and an executive, with each wanting more power and testing the limits of separation of powers. The legislature has used the public anger over the criminal allegations to cover for the weakness of the non-criminal allegations.

As I have noted before, the Illinois Senate rules do not allow for a fair trial, and in at least one respect clearly are unconstitutional. The Senate has turned over evidentiary control of the main impeachable offenses — the criminal conduct alleged by Fitzgerald — to Fitzgerald’s complete discretion, in violation of the Illinois Constitution which requires that the Presiding Chief Justice and Senators hold the trial. It is shocking that there has not been more outrage that a prosecutor brings charges, delays indictment, refuses to release evidence to support the charges, then gets to decide which evidence can be presented in a state impeachment proceeding. Hendon is quoted in the Sun-Times article reflecting on the reason for this silence: “Hendon said other senators share his concerns but are afraid to be vocal about it in the current political climate.”

The Illinois Senate will regret rigging the rules in order to achieve the result of Blagojevich being removed from office. With time the public will understand that in seeking to achieve justice for the people of Illinois, the Illinois legislature violated fundamental rules of fairness and itself violated the Illinois Constitution. The legacy will be that a Governor who had no respect for the law was removed by a legislature which had no respect for the law.