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Wednesday, January 28, 2009

Blagojevich To Appear At Senate Trial Tomorrow

It has just been announced on the floor of the Illinois Senate, nearing the end of the trial, that Governor Rod Blagojevich wants to appear at the end of the trial to argue his case against impeachment. Blagojevich to date has refused to participate on the ground that the Rules of the trial were unfair and did not permit him to defend himself. Apparently, the Senators will try to require Blagojevich to testify, but that may not happen. It is up to the Presiding Chief Justice and ultimately the Senators whether Blagojevich will be permitted to give his closing statement, with or without testimony.
UPDATE No. 1: This is a very crafty strategic move. At the time of the closing arguments, the record will be closed so the Senate Prosecutor will not be able to call additional witnesses or introduce additional evidence in response to points Blagojevich makes. This is a common trial tactic, to save your best points for closing. The difference here, is that usually you need to present the evidence you need for your defense prior to your closing. But this is no usual case. Blagojevich must figure that he has an explanation for each of the non-criminal points which he can make based upon the existing evidentiary record. As to the criminal charges, he may point out, as I have here, the weakness of the Senate Prosecutor relying almost exclusively on an out of date hearsay affidavit which uses cherry-picked excerpts chosen by U.S. Attorney Patrick Fitzgerald.
UPDATE No. 2: Look for Blagojevich to totally disregard the normal rule that you cannot "testify" in closing, meaning you can't argue facts not in evidence. It will be interesting to see how the Presiding Chief Justice -- who has been pretty hands off so far in the trial since there is only one side present -- and the Senators will react when Blagojevich does the equivalent of testifying in the guise of a closing argument. The advantage to Blagojevich is that you can't "cross-examine" a closing argument.


  1. I just noticed your Blagojevich commentary. Great stuff. We are among the few law professors who have adhered to principle in this situation. The impeachment has been a sham from the very beginning. And the situation worsened when the House accelerated the process to assist Reid and Obama in their effort to prevent the seating of Senator Burris.

  2. Someone agrees with me! I don't feel so alone anymore.