The media is all atwitter over the decision of the Illinois House committee considering articles of impeachment against Gov. Rod Blagojevich to deny the request by Blagojevich's attorneys to subpoena Obama aides Rahm Emanuel and Valerie Jarrett. The House decision comes at the request of U.S. Attorney Patrick Fitzgerald, who is concerned that the subpoenas may interfere in the criminal case against Blagojevich.
The media has it both right and wrong. Right, the House apparently made the decision not to issue subpoenas. Wrong, that Emanuel and Jarrett won't have to testify at some point. The media is failing to draw the distinction between the House proceedings drafting articles of impeachment, and the actual trial.
The legislative process to draft articles of impeachment is under the complete control of the House Democratic majority, which among other things, has denied both Blagojevich and House Republicans the right to issue subpoenas. The legislative process is purely political, and the politics of the Democratic majority and Fitzgerald are perfectly aligned for now. Once the articles of impeachment are passed, however, the political process and Fitzgerald lose some measure of control.
Article IV, Section 14 of the Illinois Constitution provides that once the House has impeached the Governor, "[i]mpeachments 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."
The key provisions are the requirement that the Senators do justice "according to law," and that the Chief Justice "shall preside." While there will be plenty of legal arguments over what this means, it is clear that these provisions impose a higher level of due process than the purely legislative House proceedings, which are not limited by such provisions.
At trial, we can expect Blagojevich to renew his request to call any and all witnesses necessary for his defense, and to invoke standards of relevance similar to what prevails in court. Unless the articles of impeachment are so narrowly drawn as to exclude any use of any information in the Criminal Complaint (or anticipated Indictment), it is likely that the testimony of Emanuel and Jarrett will be relevant to the issue, among others, of Blagojevich's alleged attempt to sell Obama's open U.S. Senate seat.
The decisions will be made by the presiding Chief Justice, not House Speaker Michael Madigan or Fitzgerald. While Fitzgerald may request a ruling from the Chief Justice denying Blagojevich the right to call witnesses whose testimony may "interfere" with the criminal case, there is no guaranty that such a request will be granted. If the Chief Justice grants Fitzgerald's request, the result may be a delay in the impeachment trial until after the criminal trial so that Blagojevich receives a fair impeachment trial to which Blagojevich appears to have a right under the Illinois Constitution. By contrast, Blagojevich has no right to a fair impeachment hearing.
At this point, it is far from clear that the legislature will be able to get through an impeachment trial by February 12, 2009, as the Lt. Governor Pat Quinn boldly predicts, or that Obama aides won't be witnesses. My guess is that if there is to be a full Senate trial it will not be completed by February 12, 2009, or any time prior to the criminal trial. If there is a conviction, there will be no need for an impeachment trial. If there is a not guilty verdict, at the impeachment trial Emanuel and Jarrett will be witnesses for the defense.