Le·gal In·sur·rec·tion

The first attempt of Illinois legislators to meet to lay the groundwork for impeaching Gov. Rod Blagojevich didn't get off the ground. The legislative committee put together by House Speaker Michael Madigan stopped working after less than two hours. Reports indicate that the committee was stymied when U.S. Attorney Patrick Fitzgerald raised concerns over what evidence he would turn over to the legislature, and Blagojevich's attorney Edward Genson requested the right to participate in the committee's meetings to ensure fairness to the Governor as procedures are developed.

Blagojevich's refusal to resign has put the legislature in a difficult position procedurally and substantively. The legislature needs to develop procedures since none presently exist, but allowing Blagojevich's attorneys to participate in the process will bog down the committee's work. At the same time, the legislature needs to prepare to prove its case against Blagojevich, but in order to do that, it needs the evidence in the hands of Fitzgerald, who obviously doesn't want his key witnesses exposed to cross-examination in the impeachment hearing prior to the criminal proceeding.

Fitzgerald also should be concerned as to what Blagojevich will do as part of his defense in the impeachment proceeding, particularly if Blagojevich has the power to subpoena witnesses and evidence related to the criminal trial. The impeachment proceedings could become a stalking horse to help Blagojevich defend the criminal trial.

So Blagojevich has created a daunting problem for the legislature, which needs (or at least thinks it needs) Blagojevich's consent to procedures, and Fitzgerald's consent to substantive evidence. The legislature is not in control of its impeachment destiny. Lacking procedures or substance, the Illinois legislature is like a rudderless ship caught in the storm surrounding the criminal trial.

As we have noted before, Blagojevich seems on the road to besting Attorney General Lisa Madigan in the weak Supreme Court lawsuit seeking to oust the Governor, and now appears on the road to besting Speaker Madigan on the impeachment front. So far, score 2 for the Governor, zero for the Madigans. But Fitzgerald has yet to come to the plate.