Le·gal In·sur·rec·tion

Illinois Governor Rod Blagojevich just finished a press conference in which he claimed that he is not participating in the Senate impeachment trial, scheduled to start Monday, because the Senate impeachment trial rules deprive Blagojevich of a fundamentally fair hearing. Blagojevich is right that he is being deprived of a fair hearing, but his trial boycott is the wrong way to go about it.

The two Rules Blagojevich cited in his press conference are Rules 15(f) and 8(b)(thanks to CapitalFax Blog for live blogging the press conference and reprinting the Rules in real time). Rule 15(f) prevents Blagojevich from calling any witness or presenting any evidence if U.S. Attorney Patrick Fitzgerald objects:

15(f) It is never in order to request a subpoena for the testimony of any person or for the production of documents or other materials from that person if the U.S. Attorney for the Northern District of Illinois has indicated that the person’s testimony, or inquiry into the subject matter of that person’s testimony, could compromise the U.S. Attorney’s criminal investigation of Rod R. Blagojevich…unless the U.S. Attorney subsequently indicates otherwise.

Blogojevich has a very good point on Rule 15(f). The Rule prevents Blagojevich from contesting evidence upon which impeachment is based. But that is not his best legal point. The more important point is that the Illinois Senate has delegated to a non-participant in the trial (Fitzgerald) authority over a Senate trial which the Illinois Constitution vests solely in the presiding Chief Justice and Senators. This is a potentially valid ground upon which to challenge the constitutionality of the proceeding.

Rule 8(b) furthers this problem by preventing Blagojevich from contesting the findings made in the House impeachment hearings (which had their own fairness problems):

No objection, however, may be made against all or any part of the House impeachment record filed by the House Prosecutor with the Secretary.

Rule 8(b) has the same fairness and delegation problems, although not as dramatic as 15(f). The Illinois Constitution provides for trial in the Senate, but the Senate has delegated the fact finding to the House. Again, a potentially valid ground upon which to challenge the Senate trial on constitutional grounds.

But Blagojevich has shot himself in the foot by not participating, submitting his witness lists, challenging the rules, or otherwise forcing the Senate to refuse to provide a fair trial in fact, not just in theory. Blagojevich should have fought each step of the way on each of these points, to create a record of his grounds to contest the inevitable verdict.

While there is no true "appeal" from the Senate trial verdict, it is likely that the Illinois Supreme Court, if it accepted the case (not a given), would apply the appellate doctrine of preservation. What this means is that you cannot raise on appeal an issue which you did not argue and preserve in the trial court, because an appellate court is not a court of first instance.

As applied here, the Illinois Supreme Court could reject Blagojevich's "appeal" challenging the Senate Rules on the ground that Blagojevich did not preserve the argument at the trial court level, even if Blagojevich's constitutional challenges (some of which I list above) were valid. As I predicted, Blagojevich would want to call Rahm Emanuel, Valerie Jarrett and other witnesses to contest the criminal allegations, and to subpoena Fitzgerald's documents; so Blagojevich should have requested that subpoenas be issued and let the Senate reject the request. The same is true for the non-criminal allegations, which do not seem substantial to me; contest the grounds regardless of what the Rules say, ask to subpoena legislators, do something other than not showing up in order to preserve the record.

It may be too late for Blagojevich to do anything other than complain, which is too bad. A full and fair airing of the evidence would do everyone good.