A Just Cause Read online

  The rumpled Genson shifted the papers and notes before him. Restricted by the committee rules, he had said all that he could. Now he summarized: The committee and Patrick Fitzgerald would not allow him to subpoena witnesses who could refute the criminal complaint used to arrest the governor. The wiretaps that were used to produce the affidavit were illegal—neither he nor the committee could examine them, and the people speaking on the recordings had not been identified. The committee should be conducted with due process, under established rules of evidence, and require a burden of proof that established clear and convincing evidence. It should follow the standards and procedures set in the Heiple hearings and apply the same to Rod Blagojevich. All the people mentioned in the criminal complaint lacked credibility, as they were convicted felons who were attempting to have their sentences reduced by cooperating with the federal government. JCAR was before the courts, and a recognized legal scholar had reported that the committee should not act before the courts decided the case. The JCAR controversy was not an impeachable offense, the flu vaccine incident was just an error in judgment, and there was no proof of the allegations of procurement or campaign finance wrongdoing.

  The sagacious defense attorney paused and searched for more to say. The interruption caused many in the audience to turn their attention toward Genson, and the room became quiet. Sitting in his motorized chair, surrounded by notes and stacks of paper, Genson knew the outcome. He knew that no matter what he said, the committee was going to send an impeachment resolution to the full house.29 He concluded, simply, with one final plea: “I’d ask all of you not to impeach in this case” (790).

  Currie thanked Genson and said she wished to make “just a couple of points.” Her statement portended the committee’s response. They would challenge the defense’s contentions. In regard to Genson’s reference to shadows, Currie said that the governor had been invited to appear before the committee and could have identified who was speaking on the recordings. Concerning JCAR, the governor could have gone to court if he thought it “invades the integrity and the prerogative of the chief executive” (790–91). However, the governor had signed legislation increasing JCAR’s authority in relation to his own, and Currie reiterated that JCAR was constitutional unless the courts ruled otherwise (790–92).

  After a brief exchange with Genson about these points, Currie recognized Jim Durkin, the Republican spokesman on the investigative committee, who offered some remarks in rebuttal. Durkin was influenced by his time in the narcotics trial unit, when, as a young attorney, he honed the instincts of a trial lawyer. “I was a young and inexperienced lawyer and up against the best defense attorneys in Chicago—you learn,” he recalled. Now, once again, he was facing the best. 30 Durkin wanted to clarify that whatever the committee decided, it would not remove the governor from office. The committee was similar to a grand jury, and should it decide to recommend impeachment, an impeachment resolution would be decided by the full house. He also wanted to make it clear that what Genson had experienced before the committee was “more than due process.” The committee had allowed the defense attorney to participate in the committee process and had allowed him to call witnesses. He stressed to Genson that he could have called his client, the governor, as well (797). He reiterated, “We’ve extended an invitation to your client to come before this committee,” and since it was “not a criminal proceeding,” the committee had the “right to draw a negative inference from his not . . . participating.” Addressing the wiretaps used in the affidavit, Durkin said, the US Attorney’s Office was acting within its proper authority to obtain the information. The use of wiretaps was within the legal boundaries established by the US Supreme Court. He stated emphatically that the committee was not “bound by anything that was done in Heiple.” He repeated that the committee was like a grand jury and could use hearsay. If the committee and the full house decided that impeachment was warranted, then the senate would hold a trial (800–803).

  Genson, not surprisingly, disagreed. The committee was not a grand jury, and its procedure should be guided by the Heiple proceedings and require clear and convincing evidence. And he added that it was his hope that the committee would consider the governor’s constitutional right not to testify.

  Currie next acknowledged Lou Lang. Like Durkin, Lang expressed that he wished to comment on Genson’s remarks rather than ask questions. Lang knew what had to be accomplished. His remarks were for the record, as well as for public consumption, and were a direct rebuttal of the statements offered by the defense. He needed to challenge and disparage Genson’s remarks, point by point, and legitimize the committee’s case for impeachment. Lang noted that Genson’s defense primarily addressed the charges contained in the criminal complaint. “He’s a criminal attorney,” Lang later explained.31 But Lang wanted to focus on the administrative indiscretions presented to the committee in the prior two weeks. They were supported by clear evidence, and in Lang’s view, they constituted violations of the constitution.

  Genson had spoken of the importance of the separation of powers, and Lang found that “a curious argument.” He asked, “Isn’t that what this hearing is all about?” He reminded Genson that Blagojevich’s attempt to expand the FamilyCare program without legislative authorization was a violation of the constitution.32 The governor’s disregard of the auditor general, the handling of the FOIA requests, and the flu vaccine and the controversies associated with the Procurement Policy Board all indicated, Lang posited, that he did not respect the independence of other branches of government and the law. In an attempt to establish that the administrative incidences constituted impeachable offenses, Lang attacked Genson’s argument that the allegations needed to rise to the level of a criminal allegation. “A noncriminal violation of the Constitution is still a violation of the Governor’s constitutional oath,” he declared. “And therefore,” he said, justifying the apparent consensus of the committee, “if this committee finds that the Governor has violated his constitutional oath for whatever reason, that would be cause or grounds for possible impeachment” (810–12).

  He also disagreed with Genson’s contention that the governor had been denied due process and wished that the governor would come in and testify. He defended the use of the wiretaps, stating that they provided evidence “as to the state of mind of the Governor” (807). Lang admonished Genson and claimed he had insulted the committee members by speaking publicly of their “railroading” the governor and characterizing the process as “a witch hunt.” The Heiple investigation had no bearing and did not set any precedent for the investigative committee. Clear and convincing evidence was not a standard the committee was bound by. Regarding Genson’s claim that “we need to have probable cause, no, that’s not the standard,” he said. The Illinois Constitution contains “a simple word, cause. Not probable cause, not clear and convincing evidence, cause” (808–9).

  In vociferous tones, interspersing criminal charges, constitutional violations, and administrative discretions, Lang went through the allegations that had been presented to the committee in the preceding two weeks. Genson had called the discussions on the government recordings “merely talk,” but Lang challenged the defense attorney to deny that it was the governor speaking and reminded him that it was a crime to perform a public act for personal gain. The committee was deciding not on the incompetence of the governor but on violations of the constitution and possible wrongful acts. “But this committee is honor-bound and duty-bound and constitutionally bound to put politics aside, to put our petty grievances with the Governor aside, to put our concern about whether he’s a competent manager of state government aside, and just deal with the issues that are before this committee,” he declared (813–16).

  The governor’s defense asked to respond. With some annoyance, Currie instructed Genson not to repeat his previous remarks. He answered that his comments would be “brand new” and quipped that “Mr. Lang is very inventive.” He maintained that his statements calling the investigative hearings a �
��circus” were directed at the newspaper coverage and editorials and that the term “witch hunt” was “apropos.” Genson referred to Lang’s interpretation of what cause was and was not and his statements that the Heiple investigation had no bearing on the Blagojevich investigation “Lang’s rules of order.” Genson would not put his client before the committee until he understood what the charges were. He again mentioned that the courts had not ruled that the governor did anything inappropriate in his dealings with JCAR. Concerning the taped conversations, he asserted that the governor “has made no offer to anyone according to that tape.” Regarding the auditor general’s audits and the PPB, Genson pointed out that no one had ever spoken directly to the governor (817–19).

  Genson’s remarks were brief. They were followed by statements and questions from the committee that ranged across the charges and defense arguments. The committee’s questions were relentless. Genson attempted to parry the onslaught: the tapes were illegal, misconduct must rise to the level of criminal conduct, JCAR was still before the courts, the tapes relate just jabber, the governor had not offered anything to anybody, and the committee should look to the Heiple case for guidance. His arguments were in vain. It was clear: Rod Blagojevich had no supporters on the committee.

  Lang again asked to be recognized. During the committee’s questioning the legal staff had time to discuss and respond to Genson’s retort to Lang’s rebuttal. Interjecting some comic relief in what had been a serious day, Genson quipped; “Didn’t you have your turn already?” Lang smiled and rejoined sarcastically, “Sorry, Mr. Genson.” Again the attorneys sparred. Lang wanted to state again—for the record—that the Illinois Constitution “refers to cause and only cause. It doesn’t say clear and convincing, it doesn’t say probable cause, it just says cause.” Further, speaking of the precedent of the Heiple case, there was no prohibition against a legislature changing its mind. Concerning Genson’s claim that the tapes were illegal and should not be considered by the committee, and the defense attorney’s claim that “nothing wrong” was discussed on the tapes, Lang asked, “If the tapes display that your client has done nothing wrong, what’s the big deal, sir?” Genson responded forcefully, “The big deal is that there are laws and the laws have to be followed.” It was “incumbent upon” him, he stated, to remind the committee that it was “considering tapes illegally” (860–61).

  Lang then asked that a series of newspaper articles criticizing the governor’s actions in the JCAR incident be entered into the committee record, and Genson quickly responded that the committee should not make a decision regarding impeachment based on polls or editorials and questioned the impartiality of the committee. Verbally battered and frustrated, Genson asked rhetorically; “Is anyone here going to stick up for the Governor . . . ? I mean this is the impartial panel that we all swore to . . . ,” his voice trailing off. Currie quickly responded that the committee would be happy for the governor to come before them and “stand up for himself” (865). The day for the defense was over.

  The Final Proceedings

  Over the New Year’s holiday the Speaker and his staff had to make some decisions. Since the first conversation between Ellis and Madigan on the day of the governor’s arrest, both men were conscious of the political ramifications of what was taking place. The impeachment resolution had to justify cause, not only for the house to concur but also to satisfy enough members of the senate to convict the governor and remove him from office. Looming above legislative tactics was the perception of the public and the media. The decisions weighed heavily. Never before had the Illinois legislature removed a state officeholder, and the world was watching. The reason to remove had to be convincing. The house investigative committee had considered tangible evidence of maladministration; both the auditor general’s audits and the JCAR controversy provided solid criteria. Contracts and procurement involved tantalizing circumstances but would require further investigation to develop concrete evidence. Negotiations with the senate had started concerning the senate’s trial rules. Removal of Rod Blagojevich had shifted into high gear. It was time to end the investigation, pass the impeachment resolution, and start the senate trial.

  The governor’s defense counsel chose not to attend the January 7 hearing. Genson had put on his defense; there was nothing more he could do. Without opposing counsel, the investigation committee met to consider one more investigative report that could provide damaging evidence of Blagojevich’s misdeeds. In 2006 Ray Long, a reporter for the Chicago Tribune, disclosed a 2004 report by the governor’s inspector general, Zaldwaynaka “Z” Scott, which found that Blagojevich’s office circumvented hiring laws. The report found that the governor’s office had falsified hiring records, ignored veterans preference requirements, hired unqualified employees, and falsified some employees’ experience and qualifications.33 Z Scott’s report was from Blagojevich’s first term, but the confidential report had not become known to legislators until it was leaked to the press in 2006. Blagojevich was running for reelection when the irregularities were reported in the Tribune, and Illinois attorney general Lisa Madigan confirmed that a federal probe of “endemic hiring fraud” was under way.34

  That fall the Blagojevich administration began to come apart. Confidants Chris Kelly, Tony Rezko, and Stuart Levine were subjects of the federal investigation called Operation Board Games, and all had been named in federal indictments. All three would later be convicted. Even Blagojevich’s wife, Patti, was the subject of an investigation concerning commissions paid to her real estate company by individuals who received state contracts. A most troubling issue was a $1,500 check given to Blagojevich, ostensibly as a birthday present for his seven-year-old daughter, by a job seeker. Nevertheless, Blagojevich won reelection and began his second term.

  Barbara Currie explained that the report, under state statutes, was confidential. The investigative committee had subpoenaed the full Z Scott report from the Executive Ethics Commission, which then consulted the attorney general for direction on whether to comply with the committee’s subpoena. The attorney general found that the information in the report was necessary for the committee’s work, which took precedence over confidentiality.35 The dependable Lou Lang summarized the findings for the committee. The report focused on complaints occurring in the Department of Employment Security. The report concluded that the governor’s Office of Intergovernmental Affairs had directed the department to bypass state protocol.36 Lang read off a litany of irregularities, including the firing of a human relations director for hiring a qualified employee rather than following the direction of the Office of Intergovernmental Affairs to hire the person it had chosen. Lang was precise, reading off page and paragraph numbers from Z Scott’s report. His presentation was damning and showed hard evidence of wrongdoing as standard procedure in the governor’s department. The committee had another arrow in its quiver.

  During the New Year’s break, Ed Genson had engaged in back-channel discussions with members of the legislature concerning an arrangement whereby Blagojevich would temporarily step down from his post, as provided in the Illinois Constitution.37 He would still be paid and retain his bodyguards. Lieutenant Governor Pat Quinn would assume the duties of governor, the impeachment would be suspended, state government would go on, and Blagojevich could concentrate on the criminal indictment that was sure to follow. Genson also advised his client not to make an appointment to fill the vacant US Senate seat created by Barack Obama’s election. He did not want his client to take what could be interpreted as a presumptuous and hostile action, given the governor’s circumstances.38 But Genson’s entreaties to Blagojevich were ignored. It was becoming clear to Genson that the governor preferred the more aggressive approach and flamboyant style of the Adam father-and-son legal team. The client was disregarding his seasoned defense attorney’s advice more and more, and the relationship between Genson and the Adam team was becoming strained. In fact, Blagojevich had not been returning Genson’s phone calls.39

  In consultatio
n with Sam Adam Jr., Blagojevich decided to appoint Roland Burris to succeed Barack Obama in the US Senate. Burris’s name was well known in Illinois politics. He had held the offices of Illinois comptroller and attorney general and had run against Blagojevich during the 2002 primary election for governor. He was African American, a necessity seen by some for Barack Obama’s successor, and he was not one of the individuals identified in the taped conversations. But as Durkin put it, Roland Burris was not “pure as the driven snow” as many claimed.40 The 2002 primary had been a three-way race among Blagojevich, Burris, and a former Democratic senate staffer and former Chicago school superintendent, Paul Vallas. Vallas had been running well, and it was rumored that Burris was thinking of withdrawing from the race. But then Burris mysteriously received a loan for $1.2 million from a Mr. Stroud, a name not well known in political circles, and he stayed in the race and ostensibly took votes away from Vallas. The loan was never repaid.41

  Over the New Year’s break Blagojevich announced the appointment of Burris to Obama’s seat, and it started a national media frenzy. Burris traveled to Washington to meet with Democratic leaders in the senate. They were not pleased. Burris, surrounded by reporters, photographers, and his attorney, held an impromptu press conference after meeting with Illinois senator Richard Durbin and US senate leader Harry Reid. He expressed astonishment that anyone would challenge his integrity. “You know me, I’m Roland,” he said. Republican Jim Durkin immediately sent a letter to David Ellis requesting that Burris appear before the committee. Durkin recalled that the initial reaction by the Democrats was dispassionate. Lang told Durkin that Burris had nothing to do with the charges being explored by the committee and that he would not receive any new information.42