A Just Cause Read online

  Madiar and Cullerton met again a few days after the governor’s arrest to discuss how the senate would conduct an impeachment trial. Impeachment of the governor was by this time imminent. The structure of Illinois’ government and its Constitution had changed since the 1833 impeachment trial of Supreme Court justice Theophilus Smith. A format and procedures for a trial were undefined. A careful lawyer, Madiar was conscious of the vagueness of the Illinois Constitution concerning impeachment, but he was also conscious of the law and potential political fallout. Impeachment is a rarity in the United States, and the procedures for state impeachment vary based on the requirements of individual state constitutions. Illinois’ Constitution treats impeachment as a political action, but the subsequent senate trial, Madiar believed, had to be conducted in a judicial fashion. Madiar looked to the US Senate trial of President Clinton and the 1988 Arizona senate trial of Governor Evan Mecham as examples. He even reviewed the procedure and rules used during the 1833 trial of Judge Smith. He reasoned that even though the Smith trial had taken place long ago, the case might provide some precedent. Madiar worked on the trial rules but had not yet been appointed to the senate staff. While in Chicago over the Christmas break, as he was buying a gift for his son, he received a call officially informing him that he would be hired as chief legal counsel. He immediately began working with the special committee.

  The full rules committee met a few times over the Christmas holidays in Chicago. The committee gained some direction from the Mecham example and even the much outdated Smith proceedings, both cases that involved criminal charges. But mainly the committee relied on the procedures of the Clinton trial, modified and shaped by its own deliberations. The rules governing the senate trial were the senate’s prerogative, with no constitutional provision establishing what the rules should include. The house staff and counsel provided input and negotiated some of the rules. The house leadership was adamant that the formal rules of evidence, used in Illinois and federal courts, would not be used in the trial before the senate, which was not a court of law. Conversely, the senate committee insisted that no member of the house serve as house prosecutor. A house member had served as house prosecutor during the Smith trial, but Cullerton wanted to maintain the senate’s independence from the house. By the senate trial rules, the counsel to the house investigative committee would be named house prosecutor. By early January, after many drafts, the final version was complete.

  On January 14 the Ninety-Fifth General Assembly adjourned and the Ninety-Sixth was sworn in. The swearing in of a new legislature is ordinarily a festive time in Illinois’ capital city. Legislators’ desks are piled high with flowers, friends watch from the galleries, and families accompany members to the chamber floor, where they take the oath of office. Hotel rooms are at a premium, restaurants are booked, and parties and receptions are held to celebrate the election winners and the beginning of a new term. Party politics are put aside, animosities are tempered, and governance, for just this one day, is in abeyance.

  But celebration was not on the minds of the house and senate leaders. The first day of the Ninety-Sixth General Assembly was different. The governor’s arrest, the national media attention of the preceding five weeks, the investigative hearings, the pending senate trial, and the imminent removal of the governor collectively served as the proverbial elephant in the room. Merriment was tempered; house and senate leaders had much on their minds. Madigan and his legal staff discussed the validity of the senate of the Ninety-Sixth General Assembly acting on the resolution impeaching Blagojevich, which had been passed in the previous general assembly. They decided to pass another impeachment resolution as soon as the Ninety-Sixth General Assembly was sworn in and send the resolution immediately to the senate.

  The momentous day created logistics considerations. Because of the crowds, the ceremony of swearing in the house had been moved several years before from the house chamber to the nearby auditorium of the University of Illinois’ Springfield campus. The house prosecutor would have to travel from the university campus to the capitol to exhibit the article of impeachment. In the senate contingency planning was taken to an extreme level. Blagojevich’s circumstances and personality led senate leaders to contemplate bizarre potential scenarios and try to “outthink crazy.” They had to be ready for anything. The governor, by the Constitution, was responsible for presiding over the swearing in the new senate. What if he refused? Madiar asked. What if Blagojevich just announced that a quorum was not present and gaveled the senate to a close? What if he simply did not show up? There would be no senate to hold a trial.7 Four Illinois Supreme Court justices would be there, however, and Madiar argued that Robert’s Rules of Order seemed to sanction one of the justices presenting the oath.

  The house decided to reconstitute the special investigative committee in case further committee action was required. HR 4, which reauthorized the investigative committee, passed unanimously as soon as the house was sworn in and organized. The impeachment resolution became HR 5, an exact copy of the previously passed HR 1671.8 With the Speaker presiding, the festivities of inauguration day were suspended, and Barbara Currie introduced and explained the resolution to the new house. Jim Durkin spoke for the Republicans and addressed the process of the investigation. He emphasized the fairness of the committee rules and the seriousness of the charges. Only Currie, for the Democrats, and Durkin, for the Republicans, spoke. HR 5 was passed with 117 voting yes and 1 voting no. Deborah Mell, the daughter of Alderman Dick Mell and the sister of Patti Blagojevich, had been elected to the Illinois house in November. It was the first time she had been present for the vote on impeachment, and she voted no. Afterward, to protect her from the swarm of media, she was escorted out of the auditorium. The senate was informed that the resolution had passed and that the house prosecutor was on his way to the capitol.

  Meanwhile, Blagojevich did attend the senate inauguration. It was awkward for the governor, the senators, and everyone else in attendance. Few were smiling. The governor attempted some levity. Blagojevich and some staff were waiting in the anteroom behind the senate dais for the swearing-in ceremony to begin. Madiar recalled Blagojevich quipping to his staff, “When they came to arrest me, I should have jumped out of the window and ran to Cullerton’s house. Then they would have had to arrest me at Cullerton’s house.” The staff laughed. Madiar did not think it was funny.9 The governor walked to the senate podium and presided as appellate court judge Mary Jane Theis administered the oath of office to the senators, and then presided over the vote that elected Cullerton president of the senate. He then invited Cullerton to come to the podium to take charge of the senate. There was a pause and another awkward moment. Blagojevich, the consummate politician, had to speak. But his remarks were political bunkum, empty words to fill an empty moment: “We live in challenging times,” he said, hoping “we can find our way, as we deal with other issues, to find the truth and sort things out, to put the business of the people first.” He followed the veiled plea with two safe topics that were not in the least controversial and would gain approval, reminding everyone that they would soon celebrate the bicentennial of Abraham Lincoln’s birth and mentioning the upcoming presidential inauguration of Illinois’ Barack Obama.10 Cullerton then made his way to the rostrum. After a quiet exchange of pleasantries, the governor left the senate.

  Cullerton made a few obligatory remarks, recognizing dignitaries in the audience, then focused on the economic challenges that Illinois faced. Perhaps in a veiled reference to the pending removal of the governor, he said, “Things today are not going well,” and “Times are not so good.”11 In deference to the governor, he consciously made no direct reference to the imminent senate trial. After the Republicans elected Christine Radogno as minority leader, and the leadership teams of both parties were announced, the senate finished its organizational business. The senate stood at ease while the guests left the senate floor. After a short period the senate began the serious work of conducting a senate trial. The sen
ators moved to adopt the trial rules developed by the special committee in the form of a senate resolution that was sponsored by Cullerton. To present the resolution, Cullerton resumed his seat in the senate, and Senator James DeLeo, a veteran legislator from Chicago’s Northwest Side who was appointed to Cullerton’s leadership team, assumed the chair. Cullerton presented the trial rules as Senate Resolution (SR) 6. After a short explanation and no debate, SR 6 was approved by a unanimous vote of 58 to 0.12 The senate then took up SR 7, the schedule for the impeachment trial, and again adopted the resolution with no debate and by a unanimous vote. The senate was united and prepared to proceed.

  Meanwhile, the house was meeting across town, at the University of Illinois, and coordination was problematic. Andy Manar and Eric Madiar were in touch with Ellis and members of the Democratic staff to keep Cullerton informed. The senate paused, waiting for word from the house that the impeachment resolution had passed and that Ellis was on his way to exhibit the resolution to the senate. DeLeo returned to his seat and Cullerton assumed the chair. After an awkward several minutes, a commotion was heard at the rear of the senate, and Cullerton called the senate to order. People ended their muffled conversations, and the senate chamber went silent. Cullerton appointed six senators, three Democrats and three Republicans, to accompany the house prosecutor into the senate chamber. The large mahogany senate doors opened, and the house prosecutor, David Ellis, and his senate escort walked in a solemn procession down the red carpet of the chamber’s center aisle, hesitant, eyes downward, shuffling silently, like dour monks escorting the bishop to an excommunication. They were followed by an entourage of attendants pushing carts heavy with boxes of evidence. Several senators stood and looked at the scene in silent fascination. The audience appreciated the grave reality of the situation. Just moments earlier they had witnessed the inauguration of a new senate, and with the new organization came a new beginning. But the celebratory mood had abruptly transformed into the somber ritual of removing a sitting governor from office.

  Like many others, Pamela Althoff, the Republican senator from McHenry, described the scene as surreal and said her feelings were mixed. She shared the excitement, the adrenaline rush, of being part of history being made but also the terribly low feeling of sadness that Illinois had come to this point. She told of another feeling that was difficult to describe: having “no emotion,” almost as if she were “an observer in a different dimension.”13

  As the muffled scene played out, Ellis informed the senate that the Speaker had directed the house prosecutor “to exhibit the Article of Impeachment which had been preferred by the House of Representatives against Rod R. Blagojevich.”14 Ellis’s utterances were strange words never heard before in the Illinois senate. This was not the familiar syntax of political debate, but an odd terminology that contributed to the dreamlike nature of the moment. Ellis read the impeachment article, requested that the senate “take over for a trial,” and asked to withdraw. The entire episode took less than five minutes. Then Ellis was escorted out, and Cullerton appointed a new committee to escort Illinois Supreme Court chief justice Thomas Fitzgerald into the senate chamber. Cullerton administered the oath to preside over the senate trial to Fitzgerald, who in turn instructed the senate secretary, Deb Shipley, to read the oath necessary for the senate to serve as an impeachment tribunal. Afterward, each senator’s name was called and each responded in the affirmative. Procedurally, the senate had “resolved” itself into an impeachment tribunal and adopted the trial rules and schedule. After some minor procedures, the senate quickly arose from sitting as an impeachment tribunal and adjourned.

  Chapter 6

  The Trial

  The First Day

  Hours before the trial began, lead prosecutor David Ellis and the prosecuting team received some reassuring news. The house assistant prosecutor, Michael Kasper, called Ellis from Chicago and said, “You won’t believe what I’m holding.”1 The prosecution had been asking for access to the FBI recordings since the investigative committee was formed, but the US attorney, Patrick Fitzgerald, was reluctant. He did not want to divulge any information that would jeopardize the federal government’s upcoming criminal case. Just before the trial, Fitzgerald compromised and agreed to release four limited segments of the tapes. Ellis was elated. The small segments gave him what he needed—the governor’s actual voice, incriminating himself.

  In addition, Daniel Cain, the FBI special agent who had signed the affidavit attesting to the accuracy of the recordings, was given permission to provide restricted testimony. With Special Agent Cain, Ellis had a real person before the senate who could address the criminal affidavit. He would not need the testimony from the house members he had earlier identified as potential witnesses. His trial strategy now was established: he would develop cause by presenting the criminal arguments contained in the affidavit used to arrest the governor, aided by the governor’s own words and with Cain’s testimony to validate the recordings; introducing the sworn testimonies of the convicted Blagojevich fund-raisers Ali Ata and Joe Cari to establish the governor’s involvement in pay-to-play activity; and establishing maladministration and malfeasance using the ongoing JCAR case and the audits concerning the flu vaccines and I-SaveRx program.

  At exactly 12:01 P.M. on January 26, 2009, the senate was called to order. On normal session days, senators slowly amble into the chamber, and after the customary prayer and Pledge of Allegiance, those present press their desk buttons to record their attendance and press the buttons of their colleagues who have not yet arrived on the senate floor. As the schedule for the day’s business is decided, one can hear muffled floor discussions and people talking on phones, while staffers move up and down the aisles. This day was different. Every senator was at his or her desk, and a limited staff was instructed to remain at the rear of the chamber. The room was silent, and the face of each senator illustrated the solemnity of the task at hand. For only the second time since statehood, the Illinois senate was about to convene a trial to remove a state officer. The silent audience members in the galleries were merely spectators watching the drama playing out before them, but they were fully engaged and aware of the momentousness of the occasion. Before them Illinois history was being created, not with loud alarms, trumpets blaring, and passionate speeches, but with the solemn dignity, formality, and precision of a courtroom.

  Access to the senate galleries was restricted, partly because of the many house members and state officers who wished to witness the historic event, partly because of public demand, and partly for security reasons. Attendance at the trial was subject to approval by the senate president’s office. Andy Manar, chief of staff for the senate Democrats, arranged to have letters of admittance and plastic gallery passes prepared.2 Gallery passes were strictly controlled. Senate staff members set up tables outside the entrance to the president’s gallery, on the fourth floor behind the senate rostrum, and the gallery at the rear of the senate to distribute credentials. Guests turned in their credentials to staff posted outside the galleries when they left and retrieved them when they returned.

  In what would be the procedure for the next four days, the Illinois senate was convened as a regular session, the chief justice was escorted into the senate chamber, and the senate then resolved itself into an impeachment tribunal. The first business on the first day was to administer the oath necessary to serve on the tribunal to Senator Frank Watson, who had been absent from the January 14 inauguration, when the other fifty-eight senators took the oath.

  John Cullerton and Eric Madiar understood the importance of following senate protocol and adhering to the trial rules. They were aware that the governor might challenge the trial proceedings and were careful to offer the governor the opportunity to participate. Following the precise script prepared by Madiar, the senate tribunal established that on January 14, in conjunction with the trial rules, Blagojevich had been served with a summons, through his deputy general counsel, instructing the governor to file an appearance and an
swer the charges contained in the article of impeachment. The trial schedule required that the governor reply by January 17; failure to reply would constitute a plea of not guilty. Blagojevich did not reply. Also, for the record, it was noted that neither the governor nor his counsel filed any motions to dismiss or challenge the article of impeachment.

  The secretary of the senate, Deb Shipley, read into the record that the house prosecutor had requested that four individuals who had appeared before the house investigative committee be called as trial witnesses: University of Illinois professor Andrew Morriss, Auditor General Bill Holland, JCAR director Vicki Thomas, and John Scully, who had provided testimony on wiretapping during the house impeachment investigation. In addition, Ellis had requested that eight house members be called as witnesses, chosen carefully to show wide geographic and ethnic inclusion in the removal effort. From the Republican investigative committee, he chose Chapin Rose, from downstate Mahomet; and Jim Durkin, the party’s spokesman on the committee. From the Democratic investigative committee, he chose Representative Constance “Connie” Howard, an African American from Chicago; David Miller, from suburban Cook County; Jack Franks, from upstate Marengo; Lou Lang, from suburban Skokie; and alternate committee member Susana Mendoza, from Chicago. Ellis also requested that Representative Gary Hannig, a Democrat from downstate Litchfield, be called as a witness. Ellis was unsure what role these witnesses would play, but it seemed necessary to have the charges that had been developed by the investigative committee expressed by “real people,” rather than present only an abstract concept of the committee’s findings.3