A Just Cause Read online

  Quoting from the criminal complaint, Ellis reported on conversations between the governor and Monk concerning a contribution of $100,000 from an owner of Balmoral Park. The recorded conversation made it clear that the contribution was in exchange for the governor signing the bill. It was also clear that Blagojevich was fully aware of the extortion. In one segment of the recordings, Monk urged the governor to call the racetrack owner personally, and Blagojevich suggested what he should use as his “reason” for the call (140–41).

  Moving to another portion of the criminal complaint, Ellis told the committee of two individuals named in the complaint, Ali Ata and Joseph Cari. Ata had served as the executive director of the Illinois Finance Authority. Cari was a former Democratic National Committee finance chairman and a director with Health Point, a private equity firm that had received $35 million in investment contracts with the Illinois Teachers Retirement System in 2003. Both men were entangled in Operation Board Games, the federal government’s ongoing investigation of the Blagojevich administration, and both pleaded guilty to federal crimes and testified against Blagojevich confidant Tony Rezko.15 As part of his cooperation agreement, Ata pleaded guilty to making false statements to the FBI and to tax fraud. He testified that he had given a total of $50,000 to Blagojevich as payment for a position with the IFA. Cari pleaded guilty to attempted extortion of JER Partners, a real estate investment firm that was seeking investment capital from the Illinois Teachers Retirement System (151–57).16 At the time of Blagojevich’s arrest, both men were cooperating with the government.

  Portions of the testimony Ata and Cari provided to the federal prosecutors were included in the criminal complaint and offered ample evidence of the involvement of Rod Blagojevich in both the selling of the IFA position and the attempted extortion of JER. Ellis recounted the numerous meetings and discussions among Blagojevich, Ata, and Rezko. He also reported Ata’s testimony that he had handed money to Rezko, who later, in Ata’s presence, gave the money to Rod Blagojevich. Cari testified that he had been involved with Blagojevich, Rezko, and fund-raisers Chris Kelly and Stuart Levine and had been told that he could profit from raising money for Blagojevich. He had been told, he testified, of a plan for Chris Kelly and Tony Rezko to pick consultants for the businesses that receive contracts from the state. Rezko informed Cari that he had a personal relationship with Rod Blagojevich and that the governor’s chief of staff, Lon Monk, would work to ensure Rezko’s choice of consultants. Business firms would be required to hire consultants picked by Rezko and Kelly, and those consultants would then funnel part of their fees to the Blagojevich campaign. Rezko also informed Cari that in exchange for raising money for Blagojevich, the administration would be financially helpful to Cari (154–57).17

  Having reported the numerous charges of wrongdoing, Ellis was now finished with the summary of the criminal complaint. Surprisingly, given the deeds that had just been presented, the audience did not react with shock or amazement. For many in the audience, the array of charges was familiar. Because of the almost continuous media coverage since the arrest, the coverage of the recently concluded Rezko trial, and the ongoing reporting of the investigations and alleged investigations of the governor’s office, the public had become well acquainted with the exploits of Blagojevich and his co-conspirators. Here it all was, neatly laid out in the criminal complaint and summarized by the house counsel.

  Barbara Currie informed Edward Genson that the committee would be happy to “hear some brief remarks.” Genson incredulously responded, “Brief?” and Currie replied calmly, “Please.” A feeling of expectation seemed to spread through the room. How would Blagojevich’s counsel respond? Ed Genson sat looking rumpled and at times befuddled, hunched over his papers, moving occasionally with lurching motions. The audience was not fooled by his deliberately expressed confusion and awkwardness; perception was an essential part of the courtroom lawyer’s performance. Genson knew he was in unfamiliar territory, and he had to try to achieve as much leverage as possible despite the committee’s restrictive rules.

  It became immediately clear that Genson was not going to be given any courtroom leeway. The committee rules did not give the defense the opportunity to cross-examine witnesses, but the seasoned defense attorney began his remarks by questioning the validity of Ellis’s use of the criminal complaint as the source of the charges presented. In hectoring tones, he began questioning Ellis. Ellis asked Genson if he was being questioned. Genson replied that he was, and Ellis objected, stating that the committee rules did not provide for the governor’s representatives to cross-examine him. Currie sustained Ellis’s objection and informed Genson that cross-examination was not allowed.

  Appearing to reluctantly accept his limitations, Genson seemingly acquiesced to giving a brief statement but immediately referred to what he called “inaccuracies” and again presented a question to Ellis. Again Ellis appealed to Currie that he was being cross-examined. The room became tense. Genson, given the circumstances, was doing his best to challenge the basis of Ellis’s statements, the criminal complaint. He postulated that probable cause had not yet been determined from the criminal complaint, pointed out there had been no indictment, and challenged John Fritchey’s earlier remarks that probable cause had already been determined.

  Careen Gordon, a Democratic committee member and a lawyer, jumped to the defense of Ellis. A former Grundy County prosecutor, she voiced that probable cause had been determined and had been the basis for the wiretaps. The conversation grew heated when Gordon told Genson that he should go back to practicing criminal law and Genson responded that Gordon should go back to law school. Genson contended that the content of the wiretaps should not be allowed as evidence in the hearing, because under the standards of due process, his client had not been given the opportunity to test their accuracy. He claimed that Rod Blagojevich had not heard the wiretap recordings and that he could not determine whether the statements in the criminal complaint were taken out of context. He also argued that for the committee to proceed using a summary of the wiretaps before they could be examined and rebutted by defense counsel “was unfair and illegal” (170).

  Next, Genson brought up the mysterious identification of people in the wiretapped conversations, referred to as Hospital Executive 1 and Deputy Governor A, and asserted that he was not able to discover who these people were. In regard to selling the US Senate seat, he claimed that there was no proof that any illegal exchange had occurred. Jack Franks interrupted. Franks and his father, who was also an attorney, were both acquaintances of Ed Genson’s, and Genson made a polite reference to their relationship. Franks told Genson that the committee’s purpose was not to find guilt and that perhaps Genson’s argument should wait for “a different forum” (172). Genson responded that he was requesting due process from the committee. He did not have subpoena power but argued that if he did, he would call the mysteriously identified people and question them. The use of hearsay as evidence was unfair, and it was unfair to use anonymous people, he said. To deprive Rod Blagojevich of the right to confront his accusers was also unfair. Genson attacked the accusations made by Ata and Cari and reminded the committee that Ali Ata is an admitted perjurer and that Joe Cari is an admitted extortionist. Stuart Levine, Genson told the committee, was facing life imprisonment. He was involved in bribery, tax fraud, defrauding the estate of a business associate, and using illegal narcotics. “This is the character of the statements of Mr. Levine,” Genson said (179–80).

  The defense counsel continued to summarize his argument against the criminal complaint. He talked about the criterion for impeachment—cause—and recalled Ellis speaking of “the line that had to be crossed.” The line had never been drawn before, Genson said, the criterion for impeachment was nebulous, and he did not know of any record of case law that defined the standard of cause. The line for impeachment should be based on evidence and based on due process and, he added, based on confrontation. Cause, he asserted, must mean something. Speaker Madigan had spoke
n about due process in his press conference on Monday—in fact, everybody was taking about due process—but due process, Genson reminded the committee, meant consideration of the evidence. To sit and listen to hearsay upon hearsay was inappropriate, he said. He went through the charges offered in the criminal complaint. None of the accusations regarding the Tribune Company had been corroborated. All that had been presented was a man who said he could do something, but there was nothing to prove that the man had talked to anyone, and Tribune Company officials were not at the hearing to confirm or deny the accusation. “Just people jabbering,” Genson said (183).

  With regard to Children’s Memorial Hospital, there was “no evidence that anyone did anything wrong,” and concerning the US Senate seat, Genson again stressed that there was no evidence that anyone had done anything wrong. The lawyer concluded by telling the committee that he could not convince them that he was right in the short period of time allotted to him and that it was incumbent that the panel members read the charges “one at a time and determine whether it’s just somebody who says inappropriate things in a two-month wiretap” (184). The committee, he said, was a jury, and each member had to decide whether what he or she heard was sufficient to “kick a guy out of office” and “whether it’s enough and whether it’s time” (185). The standard for impeachment in Illinois had never been set. It was not a visceral standard, not intuitive, but a standard that the impeachment panel had to determine.

  The reaction to Genson’s remarks was difficult to measure. His remarks did not end the day’s proceedings or even a portion of the proceedings. There was no pause to contemplate what had been said. The hearing continued with Currie recognizing the Republican spokesman Jim Durkin. The former Cook County prosecutor took issue with Genson’s claims that the hearing did not allow due process and that the committee should not listen to hearsay. He reminded Genson that grand juries are allowed to consider hearsay and that the lawyer had been allowed “more process than anybody that’s been before the grand jury representing clients” (186). Committee members were capable of “connecting the dots,” and they were going to accept hearsay and make their own determination concerning the value of the documents before them (188).

  Genson attempted to cast doubt on the evidence and express skepticism of the process. He did what good defense attorneys do, but the reality was that he was not in a courtroom. The committee was presented with evidence and would decide, as a grand jury, whether the governor should be tried by the senate. Rod Blagojevich did not have a supporter on the committee, and the few friends he had in the legislature had all taken political cover. The committee had been chosen by the house Democratic and Republican leadership to reach a decision to impeach. Careful consideration had been placed on geography, gender, race, and—most important—opposition to the governor.18 Statements by the committee members to be fair and deliberate notwithstanding, the end result was predetermined. The hearing was a show, but it was not a sham. The vague language in the Illinois Constitution gave the legislature the prerogative to act as it saw fit, and the evidence supporting a resolution of impeachment was overwhelming. The house committee was holding deliberative hearings, but it was acting to begin the removal of the governor.

  Administrative Charges, Part I

  The third day of hearings saw a noticeably larger crowd of spectators, and there was a perceptible feeling of anticipation. Reporters congregated beneath the historic paintings that hang along the first-floor hallway of the capitol as legislators, staff, and members of the public passed through security and entered room 114. On the previous day the committee had been presented with the criminal charges leveled at the governor; now accusations of malfeasance and maladministration would be offered and representatives of the Blagojevich administration would appear. The committee needed these accusations to build its case and give credence to the cause for impeachment. The committee and David Ellis did not have time to build a case based on evidence derived from any further investigations; they had to go with already available evidence of the governor’s past misdeeds.

  The accusations Ellis put before the committee were well-documented incidents concerning the ongoing dispute between the Joint Committee on Administrative Rules (JCAR) and the governor’s office over the expansion of the state’s FamilyCare program, a botched flu vaccine purchase from a foreign manufacturer in violation of US law, and a controversy over the importation of drugs from a foreign country as part of ongoing state health insurance programs, also a violation of US law. Evidence of the flu vaccine purchase and the importation of drugs was contained in an auditor general’s audit, performed in response to an investigation by the house State Government Administration Committee and a subsequent resolution providing for an audit, introduced by committee chairman Jack Franks. A second, routine audit of the Department of Central Management Services, also performed by the Auditor General’s Office, uncovered discrepancies and possible wrongdoing concerning the methods used in granting contracts and selecting vendors.

  The controversy over the governor’s refusal to comply with the decisions of JCAR regarding the FamilyCare expansion was the most recent and well-known incident, so it seemed wise to begin the hearings with that. It was ongoing, received extensive press coverage, and served the committee’s purpose: to cast the Blagojevich administration as operating contrary to the law, violating the principle of separation of powers, and usurping legislative prerogative. Currie and Ellis initially sought to legitimize their claim of malfeasance, wrongful conduct by a public official. To add credence to the contention, the committee asked Professors Andrew Morriss and Robert Rich to appear as witnesses and to explain and justify—from a scholarly perspective—the concept of balance of power, the provisions of the Illinois Constitution, and the authority of JCAR. The committee was well aware of JCAR and its functions, and in fact, some members of the investigative committee were concurrently serving as committee members of JCAR. The professors’ appearance was meant to legitimize the claim of malfeasance to the general public, to provide sanction of Illinois’ system of rule review by a respected academic institution, and to show that the governor was ignoring the system by usurping a legislative prerogative and was conceivably violating the Constitution.

  Andrew Morriss was the first witness. The law professor carefully explained JCAR’s structure and Illinois’ rule-making process and procedures. It was important, for public acceptance, that the committee establish the institutional validity of the JCAR process to uphold the charge that the governor usurped legislative prerogative. Morriss, a lawyer with a PhD in economics, met the committee’s expectations. His scholarly recitation, delivered in a measured and professional manner, served to legitimize the JCAR incident as a valid inquiry by the investigative committee.

  Robert Rich next gave his testimony, which focused on the particulars of the FamilyCare controversy. Rich provided facts and figures that would result from the program’s expansion and also speculated about potential welfare fraud being attributed to state workers who enrolled someone for a state subsidy that exceeded the limits of the program established by the legislature. He further asked whether doctors who treated people and then billed the state could be party to welfare fraud and whether they would ever be paid. If the state refused to pay the bills, he wondered, would applicants be subject to economic hardships? And where would the state obtain the $200 million projected to be the costs of expanding FamilyCare? “In my judgment what was done here represents a real problem,” Rich said, and “in my judgment these actions are irresponsible, not consistent with appropriate, constitutionally provided checks and balances” (208–9).19 Ed Genson sat quietly but took note of Rich’s remarks.

  To present the functions of JCAR, again for the benefit of public observers, the committee invited Vicki Thomas, JCAR’s executive director. Thomas was a career bureaucrat who had served in that capacity for seventeen years. She grew up in Olney, Illinois, and after graduating from Southern Illinois University, she followed th
e suggestion of a career counselor and applied for a position with the Illinois senate Democrats. She was hired and worked on the staff of the senate president, Phil Rock. When Rock retired, she became executive director of JCAR. The methods and mannerisms of Vicki Thomas exemplified the epitome of a competent and dedicated public servant. She managed JCAR in a precise and scrupulous fashion. She was an ideal witness to expound on the authority of JCAR and to provide solid, factual evidence for the committee to use in constructing impeachment charges.

  Similarly to the two professors, Thomas reinforced the legitimacy of JCAR and presented an overview of the intricacies of its workings. Her testimony, advised by Democratic members of the committee, consisted of a meticulous review of JCAR’s functions, including the number of rules submitted each year, the relationship to the General Assembly, and the process of filing and modifying rules—JCAR 101, as she called it (224).

  She focused especially on past difficulties her agency had experienced when dealing with the Blagojevich administration. Reciting the particulars of JCAR’s operations and describing specific incidents when the governor attempted to obfuscate his actions or ignore JCAR’s role resulted in Thomas giving extended testimony. To some in the audience, Thomas’s statements had become tedious. Currie politely asked the witness to get to the point: the emergency rule and JCAR’s rejection. Lou Lang, one of Thomas’s advisors, came to her defense and informed the chairman that what Thomas was relating was critical. Attempting to move things along and maintain unity, Currie instructed Thomas to “carry on.” Thomas reminded the committee that she had been asked to put the FamilyCare incident into “a framework of past experience to lead into the actions of the Department of Healthcare and Family Services (HFS).” Currie encouraged her to “go right to that” (232). Thomas presented a step-by-step review of the emergency rule, JCAR’s rejection of the rule, the impact to the state budget of the expanded program, and the response of HFS.