What Blagojevich’s Impeachment Defense Will Look Like

WILLIAM A. JACOBSON DEC 17, 2008 12:20 PM

The Illinois legislature has a problem. It has little guidance as to the standard or procedures for impeachment of Gov. Rod Blagojevich, and must be mindful of not ruining the criminal prosecution commenced by U.S. Attorney Patrick Fitzgerald. Blagojevich will use the legislature’s dilemma to his advantage, put the legislators’ own conduct on trial, and use the impeachment proceeding to disrupt the criminal prosecution.

The legislature’s dilemma stems from the fact that the Illinois Constitution gives no guidance as to the standard by which a Governor is to be judged in an impeachment trial. When most people think of impeachment, they think of the words “high crimes and misdemeanors.” But those words come from the U.S. Constitution (Art. II Sec. 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”).

The Illinois Constitution clearly gives the legislature the power to impeach, but without guidance as to the grounds for impeachment:

• Article V, Section 6(b) — “If the Governor is unable to serve because of … conviction on impeachment … the office of Governor shall be filled by the officer next in line of succession….”
• Article V, Section 6(d) — “The General Assembly by law shall specify by whom and by what procedures the ability of the Governor to serve or to resume office may be questioned and determined. The Supreme Court shall have original and exclusive jurisdiction to review such a law and any such determination and, in the absence of such a law, shall make the determination under such rules as it may adopt.”
• Article IV, Section 14. “The House of Representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment and, by the vote of a majority ofthe members elected, to impeach Executive and Judicial officers. Impeachments shall be tried by the Senate. When sitting for that purpose, Senators shall be upon oath, or affirmation, to do justice according to law. If the Governor is tried, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of two-thirds of the Senators elected.”

So what does the Illinois Constitution tell us about the standard for impeachment? Nothing. Here a just some of the open questions:

• Does the Constitution allow a “committee” to make procedural determinations?
• Must the House hold evidentiary hearings prior to voting to impeach, or are mere accusations enough?
• What will a Senate trial look like?
• Must crimes be proven?
• Must the proof be beyond a reasonable doubt?
• Do the rules of evidence apply?
• What is the role of the Supreme Court Chief Justice at a trial, and would it violate the Constitution for the Chief Justice to make rulings?
• Can the Chief Justice reverse procedural determinations of the legislators?
• Can the Governor call witnesses in his defense, and can he compel production of documents and testimony?
• And perhaps most important, can the Governor call legislators as witnesses?

A mess? You betcha. Substantively, I expect the defense to look something like this:

1. There are no standards of conduct set forth in the Constitution by which to judge whether impeachment is warranted. In the absence of a constitutional standard, the legislators should determine whether the Governor’s conduct was out of the norm for Illinois public officials, including the legislators themselves, with regard to public business.
2. If the Governor’s conduct is not out of the norm for public officials and legislators, how can the legislators conclude that the Governor should be removed from office. To do so would render impeachment a routine procedure, whereas it is considered extraordinary.
3. In order to pursue this defense, the impeachment trial of necessity must consider what is the legislative standard of conduct, including giving the Governor the opportunity to call legislators as witnesses.
4. To the extent the legislature considers criminal conduct as a standard, then the Governor needs at least all the protections available to him in a criminal trial, including the right to all evidence, to cross-examine witnesses, and the power to subpoena witnesses and evidence in his defense.
5. The U.S. Attorney’s office has evidence relevant to the Governor’s defense, and such evidence should be subject to subpoena in the impeachment case. If this precipitates legal challenges by the U.S. Attorney’s Office to any such subpoena, only the legislators (not a federal court) may rule on such challenges since only legislators have the power to make decisions as to the impeachment proceeding.

The impeachment hearings will put the entire legislature on trial, and will be used by Blagojevich to help prepare his defense of the criminal case. The criminal case, after all, is what Blagojevich is, or should, be worried about.

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