A Just Cause Read online

  Ellis quickly outlined the twenty committee rules. The rules established that any committee action would require eleven votes. The majority Democrats had twelve members on the committee. The rules provided that the committee chairperson would “attempt” to provide twenty-four hours’ notice of any meetings and, most important, that any requests for subpoenas would have to be delivered to the chairperson. Currie would then turn the subpoena requests over to the Speaker, and he would make the decision to issue subpoenas in the name of the committee. Madigan later recalled saying to Republican leader Cross, “He’s our guy, and we’ll take care of it.”7 The governor or his counsel would be limited to asking only “clarifying questions” of witnesses; they could not cross-examine them. Blagojevich or his counsel could call witnesses subject to “reasonableness” and the consent of the chairperson. Currie also maintained authority to determine admissibility of any evidence.8

  While maintaining tight control over the committee may have been motivated partly by partisan politics, it was also prompted by a concern that Blagojevich might turn the hearings into a public relations circus. Initially, in conjunction with his arrest and the complaint of attempting to sell the senate seat vacated by Barack Obama, the governor asked that newly designated White House chief of staff Rahm Emanuel and the president-elect be called as witnesses. As the hearings progressed, Blagojevich demanded that other national political figures be called, including US senators Harry Reid, Richard Durbin, and Edward Kennedy.

  Ed Genson asked to make a comment on the rules, and Currie recognized him, but not before informing Genson that his “interest” had nothing to do with the committee rules. “Our rules are very different from what happens in the places, the venues where you ordinarily ply your trade,” she said (61). Her condescending tone was not lost on Genson or the audience. The legislative committee was not dealing with routine policy matters—it was considering a criminal complaint brought by the US Attorney’s Office, administrative indiscretions, and possible malfeasance. Genson was a criminal defense attorney. He was not acting to inform public policy, but as an attorney appearing before the committee to address the criminal complaint brought against the governor of Illinois. Currie’s attitude toward Genson might also have been a defensive maneuver. She was aware of the wily Genson’s reputation. He was one of the best, always probing, sometimes with indignation, sometimes feigning a confused and befuddled manner to throw his opponents off guard. Currie was not going to allow courtroom theatrics. She made it clear from the start—she was going to run the hearings.

  Taken aback, Genson replied indignantly, “I ply my trade in many places” (61). The experienced courtroom lawyer quickly regained his comportment and questioned why there was nothing in the rules that addressed the vagueness of the Illinois Constitution in regard to “standard of proof” or the “basis for impeachment.” Currie was not about to debate the adequacy of the Constitution or let Genson control the discussion; either would have been problematic. She informed Genson that the Constitution was clear: “Impeachment is appropriate if there is cause for impeachment” (62). The exchange between Currie and Genson was followed by a short but restrained partisan debate regarding the committee makeup and the power to subpoena witnesses that was provided in the committee’s rules. Predictably, the rules were adopted by a straight-line party vote, all twelve Democrats voting yes and all nine Republicans voting no (68–72).

  Genson earlier had filed a motion with the committee to request that it appoint counsel for the governor. By appointing counsel, the state would then be responsible for attorney fees, thereby relieving Blagojevich of having to incur personal legal fees. The request was a long shot, but Genson tried. When describing the committee’s exhibits, Currie addressed Genson’s motion. She informed Genson that the motion was inappropriate and that the committee would not take it up. The proper place to request the motion, she told Genson, was with the state Attorney General’s Office. Genson replied that he had already filed a motion with the attorney general (72).

  Currie informed the audience that the day would be devoted to considering the criminal complaint submitted by the US attorney. But before the criminal complaint could be presented, Genson interrupted and asked that committee members Jill Tracy, Jack Franks, and William Black be precluded from participating in the hearing. He said that those three members, in remarks they had made the day before, had “made it perfectly clear that they already made up their mind in this case” regarding the governor’s guilt or innocence (75). He stressed that in the previous day’s discussions, the attitude echoed by several members of the committee was that due process should prevail, and if due process was to prevail, committee members should approach their task with an open mind. In a court of law Genson’s argument would have had merit, but this was a hearing in the Illinois legislature, a procedure not subject to any provisions of the law. Currie responded that the extent of due process was the committee’s prerogative, and she rejected Genson’s proposal.

  The experienced defense attorney had one more motion, this one pertaining to procedural substance. He pointed out that he had received just a one-day notification of the hearing, that he had received “no list of witnesses,” and that he had not had the time to identify and subpoena witnesses. He asked that the hearing be adjourned to give him “appropriate time to prepare” (77). The audience followed Genson’s performance with fascination. The decisions of the chairperson were predetermined—everyone knew that—and there was no question that the outcome of the hearings would be a recommendation to impeach. But Genson’s blend of strategy, theater, and knowledge of the law provided an intriguing spectacle. Most in the audience knew of Ed Genson’s reputation; his past clients had received much attention in the press. Now, as they observed the drama unfolding before them, they seemed both amused and captivated.

  Currie again rejected Genson’s motion and repeated that the subject of the day’s hearing would be the criminal complaint. She reminded Genson that he was Blagojevich’s attorney and said she assumed that he had read the complaint, in particular the sections dealing with Blagojevich fund-raisers Ali Ata and Joe Cari.9 She reminded Genson that he did not have subpoena power and said she doubted that the committee would give it to him. Currie stated again, “We are not subject to the kinds of rules that might apply in a courtroom” (77). It was important that the committee proceed with the inquiry, she said. Genson quickly countered that accepting the criminal complaint as a basis for the committee’s inquiry was a violation of the US criminal code, and he read a portion of the code supporting his position. He claimed that he had not been presented with the tapes or documents, so there was no way they could test the material at this point to consider whether the criminal complaint was illegal (79). Without addressing the substance of Genson’s claim, Currie simply informed him again that the committee was not a court and asked Ellis to present the criminal complaint.

  Taking a position at the witness table, Ellis began to summarize the seventy-six-page criminal complaint filed by the US attorney that had prompted Blagojevich’s arrest. According to the criminal complaint, the US government had been investigating the Blagojevich administration since 2003 and Rod Blagojevich had attempted to gain financial benefits for appointments to state boards and commissions, state employment, and state contracts; had attempted to access state funds; had threatened to withhold Illinois Financial Authority (IFA) assistance from the Tribune Company with regard to the sale of Wrigley Field unless the company fired members of the editorial board of its newspaper, the Chicago Tribune; and—the most damning charge—had attempted to trade the appointment of the US Senate seat vacated by Barack Obama.10 Ellis took note of House Bill (HB) 824, legislation banning large contributions from state contractors who received contracts worth $50,000 or more to the state officeholders who awarded the contract.11 He explained that the bill would become law on January 1, 2009, and that Blagojevich had “accelerated his efforts to get as much money as he could” before the law went
into effect. “On the basis of that information, the government obtained court approval to intercept oral communications in certain locations of the offices of Friends of Blagojevich,” Ellis said. (Friends of Blagojevich was the name of the account used for expenses and donations to the governor for political activities.) It was during the monitoring of communications regarding efforts to accumulate contributions before that date that the government uncovered “three different areas of criminal conduct”: the attempts to obtain campaign contributions for official acts, to extort the Tribune Company, and to trade the appointment to the US Senate seat in return for something of personal value (85).

  Methodically, Ellis summarized the criminal complaint, taking care to cover each specific incident with as much detail as he could glean from the document. Ellis and the committee had access to only a small portion of the FBI’s taped conversations that appeared in the criminal complaint, but what he had was powerful. He started with the Tribune Company, which owned the Chicago Cubs but sought to sell the baseball team to pay down debt when the company began to experience financial difficulty. In conjunction with these efforts, the company explored the possibility of receiving funds from the IFA.12 But the Chicago Tribune had been negatively reporting on Blagojevich for years and had recently endorsed Speaker Madigan for reelection, suggesting that he form an inquiry committee to study the possibility of removing Blagojevich from office. Editorials in the paper questioned the governor’s previous moves to bypass the legislature. Obtaining funds from the IFA did not require legislative approval. The governor could grant funds at his discretion—precisely what the Chicago Tribune had argued against in its Op-Ed pages. Blagojevich saw the irony of the situation and a chance to remove his nemeses from the Tribune. He instructed Deputy Governor John Harris to convey to the Tribune Company management that it needed to fire those people responsible for the negative editorials. Ellis went on in detail to describe taped conversations between Blagojevich and Harris and between Harris and a contact person representing the Tribune.

  Throughout the investigative hearings, Representatives Lou Lang and John Fritchey, both attorneys, functioned as designated committee monitors, making sure that evidence or statements presented were clarified to establish facts and concepts previously determined by house leaders. Lang coached witnesses and channeled the questioning to establish the arguments necessary to justify impeachment. Lang asked Ellis to clarify the relationship between the IFA and the Illinois government both for the record and for the benefit of the audience. Ellis answered but Lang elaborated further, establishing that the IFA is not a state agency under the governor’s control but instead a governing board, and that even though the governor appoints the members, he should have no control over their actions, to which Ellis agreed (97). John Fritchey asked the committee’s counsel to clarify that the role of the committee was not to determine criminal conduct but to determine whether Blagojevich’s conduct was “appropriate for the governor of the State of Illinois.” Ellis answered, “You have really unfettered discretion to consider what is cause for impeachment,” and, injecting a metaphor, “the line to impeach has never been drawn at criminal activity alone.” For the committee’s record, Fritchey reiterated again that the committee did not have to infer criminal activity (99).

  Ellis continued his summarization of the criminal complaint and moved to the allegations related to the vacant US Senate seat. In a rapid, almost dizzying fashion, Ellis told of the various scenarios Blagojevich had discussed with John Harris, which included five possible candidates and what he could get in return for appointing each one. It was clear that Blagojevich was interested in money and a future position for himself. Rod Blagojevich was tired of the duties of being governor, the steady stream of negative press, and his deteriorating relationship with the legislature. And because of his extravagant lifestyle, he needed money. He stated in the conversations recorded by the FBI that his decision regarding who would fill the vacant seat was based on “our legal situation, our personal situation, my political situation.” Harris responded that the legal situation was the hardest, but Blagojevich remarked that he could solve that by appointing himself to the senate seat (117).

  At the end of a lengthy recitation of those sections of the complaint that dealt with Blagojevich’s efforts to barter the senate seat, Lang and Fritchey again asked questions to clarify what Ellis had presented. Lang’s question was of a legal nature and concerned the role of probable cause as an element in charging a defendant. He asked Ellis if the US Attorney’s Office had a time limit to receive an indictment from the criminal complaint. Ellis responded that within a certain amount of time, the courts had to show probable cause to charge. “My understanding is you get probable cause from an indictment from a grand jury or through a preliminary hearing from a judge,” he answered. Ellis reminded the committee that the governor had a preliminary hearing scheduled for mid-January (132). Since probable cause of criminal activity had not been formally established, the committee was hearing a recitation from a criminal complaint that would perhaps, with review, go forward to an indictment. John Fritchey added that the complaint was signed by an FBI agent, Daniel Cain, and that Cain’s signature alone attested to the accuracy of the information. Agent Cain had expressed that there was probable cause to believe that the governor had committed the crimes stated in the complaint, Fritchey explained, then asked Ellis if this was correct. Ellis responded affirmatively and added that a federal magistrate judge, Michael Mason, had also signed the criminal complaint. Fritchey again emphasized that the criminal process differed from what the committee was undertaking, but that the criminal complaint attested to by the FBI and signed by a judge was reason for the committee to believe that the crimes had been committed. Ellis said that Fritchey’s remarks were a “fair statement” (133).

  Ellis moved on to the so-called “pay-to-play” components of the criminal complaint—the charges related to extorting money in return for official acts. In detail, he summarized three areas: attempts to extort $500,000 from highway contractors, an attempt to extort $50,000 from Children’s Memorial Hospital in Chicago, and an attempt to receive $100,000 from horse-racing interests for signing a bill that the horse-racing lobby backed. Blagojevich, he charged, when contemplating spending $1.8 billion for tollway improvements, had subsequently contacted a highway contractor. The governor told the contractor he was excited about the project and then switched to discussing fund-raising. He informed the contractor that contributions had to be received prior to January 1, when the provisions of HB 824 would become law. The amount of the project was flexible, and the governor later was recorded as saying, “I could have made a larger announcement but wanted to see how they perform by the end of the year. If they don’t perform, f—— ’em”

  To the hearing-room audience, made up of politicians, political practitioners, and observers, the language taken from the criminal complaint used in the arrest of Blagojevich seemed incredible. The cognitive dissonance caused by the contrast between the reality of our political process and our liberal democratic values, of exchanging favors or deference for campaign support, could normally be accommodated. The political process has always been one of reciprocal arrangements. “One hand washes the other and both hands wash the face,” say the old precinct workers in Chicago. Most people acknowledge that friendship and support are realities of the political process and have an existential faith that the public good is ultimately served. But extortion—the blatant demands for cash in exchange for public duties—could not be reconciled.13 The crude, vulgar babble between the governor and his associates stunned the audience. They sat in silence.

  Ellis moved on to a topic that proved to be the most resonating of the pay-to-play charges: the attempt to extort money from Children’s Memorial Hospital. The legislators on the committee and everyone in the audience found the governor’s statements inconceivable. Blagojevich plotted to extort money from Children’s Memorial by withholding $8 million in state funds for pediatr
ic care reimbursements unless hospital executives made a donation of $50,000. Recorded in several conversations with a person identified only as Deputy Governor A, the governor discussed how to motivate someone referred to as Hospital Executive 1 to contribute before January 1. Deputy Governor A assured Blagojevich that the funds were discretionary, and the governor responded that the money could be “pulled back” because of budget concerns. The hospital executive failed to respond to calls from Deputy Governor A, and a frustrated Blagojevich was recorded as saying, “What are we going to do with this guy?” (139).

  At the end of 2008 Illinois’ horse-racing industry was interested in the governor signing HB 4758. For years the subject of Illinois gaming had been hotly debated. The legislature had authorized casino gambling more than a decade before, and the horse-racing industry claimed that the expansion of gaming had caused the tracks to experience a drop in revenue. Over the years several bills had been introduced in the legislature dealing with the gaming industry, and the common question at the end of each legislative session was whether there would be a gaming bill. Every year dozens of lobbyists descended on Springfield in the last days of the legislative session, each promoting the interests of their clients. The self-interest initiatives of the various gaming interests—casinos, video gaming, and horse racing—were usually unable to reach a compromise, and the bills would fail to move. During the regular session of 2008 HB 4758 managed to survive and was considered during the veto session. A compromise was reached, and HB 4758 was passed by both chambers and sent to the governor for signature. Blagojevich saw a chance to profit before the end of the year.

  In 2008 Balmoral Park, a horse-racing track located in south suburban Chicago, had hired Alonzo “Lon” Monk as a lobbyist. A former sports agent in California, Monk had been Blagojevich’s law school buddy. He was a trusted confidant, and upon taking office, Blagojevich appointed Monk as chief of staff. Trading on his relationship with the governor, Monk left the Blagojevich administration and became an Illinois lobbyist. It was well known that anyone who wanted access to the governor hired Lon Monk. He soon had a long list of clients and was reportedly making more than $1 million a year after leaving state government.14 Monk was later identified on the FBI recordings as Lobbyist 1.