A Just Cause Read online

  The committee needed more than emotion and Chicago Tribune stories, however. It needed specifics, tangible evidence of quid pro quo, of pay to play. Lou Lang, a designated committee monitor, probed the witnesses. He set the tone of his questions by first explaining that he needed to review the testimony and distinguish between gross incompetence and “something else.” The witnesses responded with statements that confirmed the difficulty of dealing with CMS but did not provide any hard evidence of wrongdoing. Bedore said that the PPB checked the backgrounds of those who represented the building owners and any contributions made as a matter of protocol; however, a review was not always made, and ownership and contributions were difficult to assess because of the many legal types of ownership. PPB did not retain the information on ownership and contributions. Several committee members then asked penetrating questions, and the answers continued to discredit CMS’s methods and cast suspicions on the agency. But the witnesses could offer nothing concrete; in judicial parlance, there was no smoking gun.

  The PPB witnesses were followed by Cindi Canary, director of the Illinois Campaign for Political Reform, a nonpartisan public interest group that primarily addresses the role of money in Illinois politics and monitors campaign contributions. Canary had monitored Blagojevich’s campaign fund since 2003 and could provide information and describe questionable patterns related to the pay-to-play allegations. Canary defined “pay to play,” in broad terms, as “asking for an inducement in exchange for an administrative action taken by a public official.” She provided the committee with a list of individuals and corporations that had given large contributions to the Friends of Blagojevich and subsequently obtained contracts or jobs. Unlike the federal law, Illinois’ law placed no restrictions on the amount of money or the transfer of money between campaign committees that could be given to officeholders or candidates. Illinois required only disclosure. She pointed out that convicted felon Chris Kelly was responsible for a $650,000 contribution to Blagojevich’s early efforts to run for governor. Kelly became a key advisor to Blagojevich and was named a special agent representing the governor to the Illinois Gaming Board. At the time of the investigative hearings, Kelly was charged with tax fraud related to gambling debts. Rod Blagojevich had raised more than $58 million in the eight years since he had formed the campaign committees. The Chicago Tribune identified 235 checks written for exactly $25,000 and dubbed the donors the “$25,000 club.” Canary said the Tribune had discovered that three-quarters of the checks came from people who had received something favorable from the Blagojevich administration. An examination of the records kept by the State Board of Elections showed that 440 donations of $25,000 or more accounted for $21 million in receipts. Canary noted “a troubling, apparent correlation between donations and state actions” (664).

  After Canary’s testimony, Currie and Lang clarified for the record that what she had illustrated was not that the governor was a good fund-raiser, but that there appeared to be a correlation between making contributions and receiving contracts and jobs. Several members followed with random questions, but nobody commented on the amounts Canary had mentioned in her testimony. She had detailed what everyone knew: play to play was a reality in Illinois politics, but in the past six years the state had experienced pay to play on steroids. Contributions had gone from politics as a process of reciprocal exchanges to the unabashed selling of official action. Campaign contributions were necessary to run successful campaigns. Officeholders solicited campaign contributions, and those who represented interests in the public policy debate made contributions to support their friends and gain access and deference. But where was the line between mutual support and bribery? The patterns reported by the news media and now articulated by Canary left no doubt: Blagojevich’s conduct had violated a basic tenet of the core American creed—equality—by granting special privilege to those who would or could pay. To the veteran politicians and political practitioners in the hearing-room audience, who had read the frequent newspaper articles and were aware of the methods of the governor’s office, Canary’s testimony shone a spotlight on the obscene conduct of the last six years. Now they showed little outward reaction as they sat in wordless contemplation. It was up to the silent onlookers in the hearing room to reconcile the reality of politics and the ideal of their values.

  The testimonies of Brown, Bedore, and Canary publicly confirmed what many legislators had suspected for years: the Blagojevich administration had systematically engineered state government into an enterprise to benefit Rod Blagojevich and his close advisors. Everything was for sale: state contracts, appointments, jobs. The recent trial of Tony Rezko had laid bare the interworking of those close to the governor, and with the PPB witnesses’ descriptions of questionable circumstances regarding state contracts, it was clear that the Blagojevich fund-raising octopus extended deep into state operations. But the day’s testimonies had reported only suspicious behavior and circumstantial evidence. The examples presented by Brown and Bedore would require a prolonged investigation by branches of government outside of the legislature to uncover tangible evidence and possible charges. Cindi Canary’s testimony and the recent newspaper reports revealed patterns of pay to play, but there was no hard evidence that any contract awarded or job given had been based on quid pro quo. The hearing adjourned until after Christmas.

  The house staff continued working over the holiday, but the investigative committee received a welcome break. The interlude was interrupted for Jim Durkin, however. On Christmas Eve he received two frantic messages on his cell phone from a lobbyist who had arrived in Springfield with the Blagojevich administration and was close to the governor, asking Durkin to meet him in a hotel lobby in Oak Brook, a western suburb of Chicago. The former prosecutor thought the messages seemed “curious” and a bit suspicious. Durkin did not return the calls.26

  The Defense

  On Monday, December 29, two days before New Year’s Eve, the committee reconvened to hear Ed Genson, the governor’s defense attorney, answer the charges. The week between Christmas and New Year’s is normally a time when the pace of Illinois government slows, and posts in the state capitol are manned by skeleton crews. But this was not a normal day. The entire day would be devoted to hearing and debating Genson’s contradictory arguments. The governor’s counsel would present the argument for the defense, and the committee would hear questions or rebuttal from its members. Genson was not allowed to cross-examine previous prosecution witnesses or call witnesses to offer testimony for the defense, nor would the prosecution call any witnesses or present further evidence. In legal circles Genson had a reputation as a persuasive defense attorney, and the anticipation in the hearing room was palpable.

  During the past two weeks Ellis and his legal team had constructed a case for impeachment based on the allegations in the criminal complaint and administrative transgressions, which were substantiated by tangible evidence of malfeasance and misfeasance that had occurred during Blagojevich’s terms in office. The governor should be impeached, they maintained, because he had improperly executed lawful acts, committed wrongful conduct, and failed to perform his official duties.

  Genson began his remarks by renewing his request to subpoena four witnesses: Valerie Jarrett, a Chicago executive and close friend of president-elect Obama; Rahm Emanuel, an Illinois congressman and the designated chief of staff for Obama; Illinois congressman Jesse Jackson Jr.; and Nils Larsen, an employee of the Tribune Company.27 He told the committee, “It’s our understanding that Valerie Jarrett will testify that she received no requests, nor did she request any quid-pro-quo relative to her possible appointment as senator.” He said that each witness would confirm that he or she was never involved in arrangements where political or public action was dependent on financial support. It was his understanding that the US attorney was opposed to subpoenaing the witnesses, he said. He claimed that the requested witnesses would contradict what US Attorney Patrick Fitzgerald alleged in the criminal complaint and at the press conf
erence he held immediately after the arrest. Predictably, Currie refused. She responded that the investigative committee did not want to jeopardize the US attorney’s “opportunity to pursue the criminal investigation that is underway against [Genson’s] client.” Genson deemed the remarks by Fitzgerald inappropriate (737–38).28

  Genson attempted to define the debate within the confines of courtroom standards. Throughout the previous two weeks of hearings the wily defense attorney referred continually to Barbara Currie as “Your Honor.” There was a method to his misstatements; he was subliminally suggesting that the legislative hearing was governed by courtroom decorum. His aim was to establish a legal standard for impeachment and that the criteria required burden of proof. He told the committee that he looked to other states that, like Illinois, did not have constitutional standards, “to other law,” and argued that there was a “general understanding” that the standard for impeachment was “a functional equivalent of high crimes and misdemeanors” (745). The only governor to be impeached in the last seventy-four years had been Arizona governor Evan Mecham in 1988, and he was not impeached until after he was indicted. Genson argued that impeachment must be based on egregious criminal conduct and dismissed any other cause.

  Speaking from notes but mostly extemporaneously, the trial lawyer moved rapidly from one topic to another. He reminded the committee that “freedom is threatened when one branch of government is able to control or ignore the independence of another branch,” and speaking of those elected to office, he noted that “the suitability of their performance is entrusted to the determination of the electorate” (752). Genson urged the committee to look to the impeachment investigation of Justice Heiple. “The best document that exists that shows what impeachment should be in the state of Illinois is the House of Representatives impeachment opinion of Justice Heiple,” he claimed. The investigative committee report in the Heiple case “suggested to the whole House not to do it,” and Genson recommended that the report be required reading for the entire Blagojevich investigative committee (748).

  He contrasted the Heiple hearings with his present situation. Heiple was permitted counsel and informed of the allegations being investigated, but Genson received information “mostly on the day I was presented with it.” Heiple’s counsel was able to cross-examine witnesses and was given subpoena power. That remark caused Chairwomen Currie to interrupt, and she informed Genson that the rules of the investigative committee were identical to those followed in the Heiple hearings. Heiple’s counsel also had been limited to clarification and not allowed cross-examination. Undeterred by Currie’s correction, Genson continued to contrast the Heiple case with what was being allowed for Blagojevich. The Heiple hearings had begun with testimony from constitutional experts, who presented criteria for standards of impeachment and the burden of proof. The committee investigating Judge Heiple concluded that they must render their decision based on “clear and convincing evidence” (749–53).

  Genson’s defense focused mainly on the criminal complaint. He addressed the wiretaps that produced the criminal affidavit used in Blagojevich’s arrest and spoke of the press conference Fitzgerald held afterward. His choice of words was calculated. Attempting to diminish the validity of the wiretaps, he referred to the “opinions” and “feelings” of the FBI agents listening to the taped conversations and called the reaction to Fitzgerald’s press conference “cataclysmic.” He conceded that the publicity generated by the press conference had to be “dealt with” but stressed that it was necessary that the committee hearings “be conducted with due process” (740–41). He bemoaned that the committee had told him there were no rules of evidence and that no objections would be allowed because the committee was not a courtroom. Genson regretted that hearsay was admissible and that the committee had allowed “uncertified transcripts, unsworn statements and even newspaper articles.” No one had come before the panel “to tell us what the standards of impeachment are” or “to talk to us about the burden of proof.” Before the hearings began, some committee members had made statements suggesting “they were not predisposed to rule in favor of Governor Blagojevich,” he said (743).

  Genson had filed a motion before the committee to preclude the introduction of the wiretaps because he had not had access to them, and in fact, the committee did not have access. The people speaking on the wiretaps were not identified, and Genson claimed that “the introduction of those snippets” of recorded conversations was not legal. The committee had sent a letter to the US attorney asking that the identities of the people speaking on the recordings be revealed, but he did not respond. Without knowing who was talking on the tapes, the allegations against the governor were based on hearsay. In emphatic tones, Genson said that he was “fighting shadows,” noting, “We don’t know if the quotes are accurate. We don’t know if they’ve been cherry picked.” He labeled the conversations related in the criminal complaint “just talk” and said there was no proof that anyone had been propositioned. “There is no corroboration,” he appealed. The question was, “Is that clear and convincing?” (763–68).

  Genson then turned to the three individuals who had made statements cited in the criminal complaint: Ali Ata, Joe Cari, and Stuart Levine. All three had pleaded guilty to federal crimes and were cooperating with the government in order to have their sentences reduced. Ata was a longtime contributor to Blagojevich campaigns, but he was also a convicted perjurer, who had lied under oath multiple times, and he was asking for probation in exchange for providing testimony against Blagojevich. Was the statement of Ali Ata, a convicted perjurer, who asked for probation in exchange for testimony against the governor, “clear and convincing?” Genson queried. Joe Cari was an admitted extortionist who also had been told that he could ask for probation if he would cooperate and make a statement regarding what the governor had said. Genson then spoke of Stuart Levine, who was going to get a sixty-month sentence for admitting he extorted money from a medical school. Levine pleaded guilty to income tax evasion, bribery, election fraud, and defrauding the state of business, and he used narcotic drugs. Commenting on remarks that Levine supposedly made to Cari and noted in the criminal complaint, Genson asked, “Is that clear and convincing?” He reminded the committee, “Those are the allegations that are set forth in this hearing that are used as a basis for impeachment” (768–71).

  The defense moved to the administrative charges presented by the committee counsel. Genson stressed that though some committee members thought the charges “so serious,” they were in fact noncriminal matters. He addressed the JCAR controversy by noting that nine other states had found that similar legislation was unconstitutional. The professors who testified did not have constitutional law expertise and were simply stating their opinions on how valuable JCAR was, he said. One professor thought the governor’s actions were impeachable but could not say why. Another said it was for fraud but could not say what fraud it was. Referring to the Caro case, Genson said that Scott McKibbin (actually Ron Gidwitz; Genson misspoke here) and Greg Baise, parties to the litigation, “were not exactly bleeding hearts, but they were indignant that they might have to pay some more tax dollars because of this program. Indignant. Strutted in, said we should impeach, and strutted out” (772–74).

  Attempting to establish legal credibility to his claim that the JCAR incident was not cause for impeachment, Genson turned the committee’s attention to the two-page report submitted by Ann Lousin (misspelled as Lucine in the impeachment transcript). Genson noted that she was a professor of law at the John Marshall Law School, a research assistant at the 1970 Constitutional Convention, a staff assistant to the state house Speaker and a house parliamentarian in the 1970s, and a staff member of the house Constitutional Implementation Committee. The defense counsel declared that Lousin, the only constitutional law expert to submit comments to the committee, had said that the governor should not be impeached based on the JCAR incident.

  Next, Genson characterized the decision to purchase the flu vacci
ne as an error in judgment and pointed out that no money had been paid. In an attempt to obfuscate the actions of the governor’s staff, he said, “Nobody paid money not knowing that the drugs would not be allowed to come into the United States.” Although it was bad judgment, a mistake, it certainly was not impeachable. Attempting to distance Blagojevich from the actions of his agencies and decisions by his directors, Genson noted that “nobody talks about the governor” (780–81).

  Genson again asked the committee to follow the law and use the same standard for impeachment that the Heiple committee had used. He again stated that he was “fighting shadows,” fighting people who had been convicted, and fighting preliminary hearings that had yet to take place. There had never been a legislator removed from office while an indictment was pending. Genson said he understood Currie’s deference to the US attorney and her desire not to interfere with the investigation, but referring to Fitzgerald’s disallowing of defense witnesses, he said it was not fair to write up a complaint and then refuse to talk about it. “It’s just not fair,” he emphasized (788–89).