Le·gal In·sur·rec·tion

On Monday, January 26, 2009, the impeachment trial of Illinois Governor Rod Blagojevich begins. Nominally, the trial will be held by the Illinois Senate with the Chief Justice of the Illinois Supreme Court presiding. In reality, this case is, and always has been, under the control of U.S. Attorney Patrick Fitzgerald.

The impeachment process started just days after Fitzgerald held his now famous press conference on December 9, 2008, in which Fitzgerald announced that Blagojevich was guilty of various crimes while in office, most spectacularly the attempt to sell Barack Obama's vacant Senate seat. The charge was made in a press conference, and in a criminal complaint and supporting affidavit.

During the press conference, Fitzgerald went to great lengths to quote colorful language by Blagojevich, making a point of inserting the term "bleep" into the quoted transcripts. Fitzgerald could have brought the charges, and thereby thwarted any attempt by Blagojevich, without the highly inflammatory theatrics at the press conference. The press conference was the first step in Fitzgerald removing Blagojevich from office.

The press conference made great theater, and poisoned the public against Blagojevich as Fitzgerald must have intended, but revealed very little of the evidence. At this point, a month and a half later, there still has been no indictment. Fitzgerald has obtained an extension of time until early April 2009 to bring an indictment, allowing him to maintain secrecy all the while proclaiming Blagojevich's guilt.

The Fitzgerald press conference created a media and legislative frenzy, but Fitzgerald has made public almost none of the evidence in his possession to support his claims to assist the public in assessing the truth behind the criminal complaint. The affidavit supporting the criminal complaint contains excerpts of taped calls, but does not contain complete conversations, much less other conversations which might put the excerpt in context. Although you wouldn't know it from the press conference, cursing profusely is not a crime.

The Illinois legislature has made the criminal complaint affidavit one of the centerpieces of the impeachment process. The other grounds for impeachment, such as violating separation of powers, are secondary. If the legislators were honest with the public, they would have to admit that the criminal complaint allegations are the reason for impeachment, and everything else is window dressing.

While the criminal complaint allegations are the reason the impeachment process started, Fitzgerald has made sure that Blagojevich was not able to obtain the evidence necessary to defend himself in the impeachment process against such charges. At Fitzgerald's request, the House impeachment committee forbade Blagojevich or anyone else from inquiring into the evidence supporting the criminal complaint affidavit. Instead, the House took the affidavit to be true, and based much of the article of impeachment solely on the affidavit. The Illinois Senate has accepted the house impeachment record, which incorporates the criminal complaint affidavit, into evidence while forbidding anyone from challenging the record. (Senate Rule 8(b))

The Senate also has forbidden anyone, including Blagojevich, from seeking any evidence which, in the sole estimation of Fitzgerald, would endanger the criminal case. (Senate Rule 15(f)). Blagojevich cannot call witnesses, such as Rahm Emanuel and Valerie Jarrett, who are believed to be persons referenced in the criminal complaint affidavit as persons to whom Blagojevich attempted to sell the Senate seat, despite denials by Emanuel and Jarrett that any such attempt was made. So Blagojevich cannot call material witnesses to cast doubt on the specific and overall reliability of the criminal complaint affidavit. Rule 15(f) violates fundamental fairness.

More important, Rule 15(f) gives to Fitzgerald decision making power over the Senate trial. I believe this provision violates the Illinois Constitution, Article IV, Section 14, which states that "impeachments shall be tried by the Senate." Nothing in the Constitution vests the U.S. Attorney with the power to try a Governor, but here, the U.S. Attorney has been given the power to make decisions over the evidence permitted at the trial. The delegation of trial authority to Fitzgerald is unconstitutional, and is an irrevocable taint on the trial process.

By analogy, nothing in the various constitutional and statutory provisions empowering the judiciary to decide cases empowers the judiciary to delegate decision making authority to others. If would be as if a judge decided that trial rulings would be made by the judge's neighbor. Only in the case of Rod Blagojevich is such outrageous conduct tolerated, because Fitzgerald successfully convicted Blagojevich in the court of public opinion without so much as an indictment, much less a trial.

Blagojevich has done himself no favors by refusing to partipate in the pre-trial and trial procedures in order to contest the Senate Rules. In so doing, Blagojevich may have waived his otherwise valid objections.

The impeachment trial that is about to begin is an injustice. Not because Rod Blagojevich is innocent of the charges, or should remain in office. Rather, the injustice is a result of a prosecutor who saw it as his charge to use his bully pulpit to remove a Governor, and a legislature which willingly served this function for its own political purposes. Rod Blagojevich may not deserve sympathy, but he does deserve a fair and constitutional process, neither of which will be available at the Senate trial.