Le·gal In·sur·rec·tion

The Illinois House impeachment committee has just released its Proposed Report on its investigation and recommendation of impeachment of Gov. Rod Blagojevich. The 69-page report will be the subject of further posts, but one thing is clear, the Report sets up an inevitable clash with U.S. Attorney Patrick Fitzgerald over evidence material to the federal prosecution of Blagojevich.

As previously and widely reported, Fitzgerald asked the House committee not to call witnesses or subpoena evidence material to the federal prosecution, so as not to disrupt the ongoing investigation and grand jury proceedings. The House committee honored this request, and did not allow Blagojevich to call Rahm Emanuel and Valerie Jarrett as witnesses during the impeachment hearings.

In what only could be called a startling move, however, the House committee relies extensively on the allegations in the federal Criminal Complaint against Blagojevich as a basis for impeachment. While the House committee previously had signalled that it would consider the Cain Affidavit, the extent of the House's reliance on the Affidavit are clear. Fully 15 pages in the Report recite and quote from the affidavit of Special Agent Daniel W. Cain filed in support of the Criminal Complaint. The House, which has almost limitless power, had its cake and ate it too; the House relied upon the Cain Affidavit, but did not permit Blagojevich a meaningful opportunity to challenge the evidence.

If the Articles of Impeachment voted on by the House reflect the Proposed Report, it is hard to see how the Senate trial cannot allow Blagojevich to subpoena relevant documents and witnesses (including Emanuel and Jarrett) to contest the allegations in the Cain affidavit. The Affidavit may suffice in an impeachment hearing, but no court would permit such a hearsay document in evidence. The underlying wiretap tapes,and the witnesses, are the only real evidence. As I predicted, if the Senate is to give Blagojecivh a fair trial, the evidence in the possession of Fitzgerald should be subpoenaed to assist Blagojevich in his defense, and Emanuel and Jarrett will be necessary and material witnesses.

Unless of course, the Illinois Senate does not intend on giving Blagojevich a fair trial, contrary to the provisions of the Illinois Constitution that the Senators "do justice according to law." More to come.