A Just Cause Read online

  Although Thomas’s testimony was lengthy and went into great detail, it met the committee’s objectives. She gave the impression of a consummate bureaucrat representing a legislative agency struggling to accomplish its tasks in accordance with established legal procedures, within the context of the Constitution, and in spite of political interference from the governor. She further institutionalized the role of JCAR and demonstrated that what HFS had attempted usurped legislative prerogative, was fiscally irresponsible and unconstitutional, and demonstrated poor governance. Her presentation helped sanction the charge of malfeasance. Ellis and Lang later apologized to Thomas for the committee’s confusion over the scope of her remarks.20

  The investigation then moved on to the most publicized element of the JCAR controversy. The prosecution witnesses were plaintiffs in the Caro case, Ron Gidwitz and Greg Baise, and their attorneys, Tom Hecht and Claudette Miller, from the Chicago law firm of Ungaretti and Harris. The Caro lawsuit had been covered by the press since its filing a year before, but it had emerged as a major topic in the last few months. Originally filed by Riverside attorney Richard Caro, the lawsuit was joined by Gidwitz and Baise, who in turn retained Ungaretti and Harris. Ron Gidwitz was a well-known Chicago-area businessman who had been active in Republican politics since the 1980s and had developed a reputation for his work in civic and charitable organizations. Greg Baise was a veteran of state government and the president of the Illinois Manufacturers’ Association (IMA), a leading business trade association. Both Gidwitz and Baise served as symbols of the business community and became parties to the Caro litigation as Illinois taxpayers. The involvement of Gidwitz and Baise brought financial resources and a team of lawyers to the case. The Caro lawsuit expressed the substance of the committee’s argument regarding the JCAR controversy: by ignoring JCAR and expanding the FamilyCare program without legislative approval and appropriation, the governor was acting in violation of the Illinois Constitution. The Caro case had not yet been settled, and Gidwitz reviewed the details of the proceedings to date.

  To emphasize the investigation’s impartiality and balance the testimony presented by the University of Illinois professors, the executive director of JCAR, and the litigants in the Caro lawsuit, the committee invited representatives of HFS, the defendants in the Caro case, to give testimony. The nature of the testimony presented by the preceding witnesses had been advised by the committee. In contrast, HFS was provided short notice and received the committee’s request to appear only the day before. The department seemed to be a crew adrift without a captain. After Currie requested that the department appear, little thought or direction concerning the committee’s request was forthcoming from the governor’s office, where things were in disarray. Ed Genson was only peripherally aware of the JCAR controversy. Who made the decision that HFS would comply with the committee’s request to appear is difficult to ascertain. Barry Maram, the director of HFS, agreed to appear voluntarily. He later would not comment on the decision to attend the impeachment hearings and declined to discuss his role.21 The committee had subpoena power and could have exercised it, but committee members felt that Maram was confident that he could deal with the committee’s questions. Maram, HFS chief of staff Tamara Tanzillo Hoffman, and attorney Larry Blust were sworn in before the committee.

  Maram and Hoffman were the first and only representatives of the Blagojevich administration to appear before the committee. Their appearance did not serve to support the governor’s position. The committee was intent on establishing, for the record, that the governor was responsible for the decision to ignore the verdict of JCAR and proceed with the expansion of the FamilyCare program. The committee also intended to show that no funds had been appropriated by the legislature for expansion of the program, that the expansion had cost Illinois taxpayers millions of dollars, and that the governor had been fully aware of the consequences, as illustrated by his own press statements. If the committee could prove that the governor had engineered these violations, then it had proof of administrative malfeasance.

  Maram began his testimony with a tedious review of the federal government’s State Children’s Health Insurance Program (SCHIP) and reported that actions by the Illinois legislature, Congress and President George W. Bush had reduced the program. The committee and the audience immediately sensed that Maram’s initial remarks were an attempt to obfuscate the JCAR issue with a recitation of known facts. John Fritchey, a member of JCAR who was familiar with the facts, quickly interrupted and focused on the committee’s interests. He asked Maram why, instead of submitting an emergency rule to restore only the people dropped from the FamilyCare program because of the federal pullout, the administration had sought to expand the program. Trying to implicate Blagojevich specifically, Fritchey wanted to know who had made the decision to expand the program.

  Fritchey repeatedly asked who had made this decision, but neither Maram nor Hoffman gave a definitive answer. Fritchey was a respectful interrogator, but as the questioning continued, the witnesses seemed to become unnerved. At one point, addressing the subject of lawyer-client privilege, given as a reason for not answering Fritchey’s question, Hoffman sputtered, “I’m a lawyer. I don’t—I don’t know the rules about privilege and what is or isn’t. My parents worked most of their lives two—you know two jobs for me to have my law license, and I don’t know the parameters of what the code presents” (261–62). Maram and Hoffman said they could not recall any specific directions having come from the governor or the governor’s office. They recalled discussing FamilyCare but could not recall who was in the meetings or any specific conversations with individuals concerning the expansion of the program, and they continued to dodge questions and give vague answers. They told Fritchey that they would check their notes, if they had them, and get back to the committee.

  The witnesses appeared evasive and at times obviously befuddled. Their refusal to answer questions played into the hands of the accusers. The audience members became fascinated, and several shook their heads in disbelief. The witnesses were representatives of the Blagojevich administration, and the spectacle before them reinforced what many had long suspected: many of the governor’s administrators were not dedicated, professional public servants but devious bunglers. Ellis, as the committee counsel, could not have picked better witnesses to serve his purpose. The ineptitude displayed by the representatives of HFS bordered on buffoonery and provided an impression of the governor’s administration as incompetent, evasive, and hubristic.

  Mike Bost, a Republican committee member from Murphysboro, continued the line of questioning taken by Fritchey and received the same vague answers from the witnesses. After a few awkward moments, Maram asked Currie if he could continue his testimony, claiming that “other people have had the opportunity to make statements” (268). Currie said he could but cautioned him to be brief and to stay on topic. Maram’s statements again began to wander off topic, relating known facts, and again Currie interrupted and reminded him that the question was the governor’s authority to expand the FamilyCare program without the authorization of the legislature. He could finish his statement, Currie said, as long as he stayed on topic.

  Maram continued, contending that the department’s action to expand FamilyCare was taken pursuant to statutory authority and that the department had the right to set maximum income limits. The expansion, he said, was not a “huge expansion” as claimed by the plaintiffs in the Caro case and resulted in an increased enrollment of less than five thousand before the department was ordered to suspend expansion because of the ongoing Caro litigation (272). The costs of the expansion had not exceeded $6.3 million and were partly offset by premiums collected from the participants. Maram attempted to refute the Caro plaintiffs’ claim that HFS lacked statutory authority to promulgate the expanded regulations and that the regulations were invalid. He argued that the courts had never contended that HFS did not have the authority to set rates based on income levels. Maram finished by reviewing statistics on prev
ious raises of income levels and past JCAR approvals of income raises based on the impact of federal programs.

  Lou Lang took up the questioning for the house majority. Lang was also a member of JCAR and was very familiar with the controversy. He wanted to establish for the record that a number of people were added to the FamilyCare program after JCAR prohibited the expansion and that the legislature had appropriated no funds for the expansion. Lang was a familiar voice in committee meetings and on the house floor. The tone of his questioning often bordered on sarcasm mixed with sanctimony, and he could be hectoring and at times seem irritating. His style of debating could annoy opponents, but he was skilled and his arguments were strong. Lang warned Maram that if they did not answer his questions, he would interrupt and ask the question again. He asked how many people were added to the FamilyCare program after the governor expanded it, and Hoffman responded that at one point there were five thousand and now it was about four thousand (280). Lang pounced on her answer and again asked how many people were added after JCAR prohibited the expansion of coverage. Lang wanted to establish that the department had ignored JCAR’s authority and continued to enroll people in the program. He persisted, and after several back-and-forth questions and answers, the witnesses agreed to provide the committee with the true number by the end of the day.

  Lang then asked Maram why the department had failed to respond to a past Freedom of Information Act (FOIA) submission by the Caro case attorneys with a similar request. Hoffman responded that the request had been denied. She said that she had seen the response letter from the department, but she could not remember what was in the letter or the reason for the denial. It was her understanding that the request had been denied “in the context of litigation,” and she asked for the opportunity to consult with the attorneys involved to make sure that what she was saying was accurate (285). Lang tried to involve the governor by asking if anyone from the governor’s office ever spoke to Hoffman or Maram about the FOIA requests. The witnesses responded that they had no knowledge of that but would talk to their attorneys.

  Intently hunched over his notes, dressed in a white shirt and tie, with his left hand held to his forehead, Lang turned his questions to funding and asked how HFS was paying for the program expansion. Sitting erect, tense, and vigilant of his opponent’s next move, Maram parried that the expansion was being funded through internal efficiency initiatives using available funds from the department’s budget. Lang asked, incredulously and with a hint of sarcasm, whether the department would have a $6.3 million surplus if the program had not been expanded. Maram did not answer. Returning to the decision to go ahead with the expansion of FamilyCare, Lang asked directly if the expansion had been Maram’s idea. Maram said it had not been initiated by him, but after review he was comfortable with the expansion. Lang, showing some interrogatory skill and trying once again to solicit a response that would implicate the governor, quickly asked Maram who had initiated the idea to expand the FamilyCare program. The director did not take the bait; he held firm and responded yet again that he had “no exact knowledge.”

  Lang continued to press the witnesses, trying to get them to admit that the governor was involved in the decision to ignore JCAR and establish that he had been aware of the financial consequences. He quoted from a November 2007 Associated Press article placing the number of caretakers and parents that would be added with the FamilyCare expansion at 147,000 and quoting the governor as saying, “I’m going to do what I think is right, and that’s one of the good things about being governor . . . you can do things like this.” Addressing both Maram and Hoffman, Lang asked how, in view of the extensive press coverage, it was possible that the representatives of the department could not remember anything about meetings or discussions regarding the FamilyCare expansion. Hoffman readily admitted that she had been involved in those meetings, and Lang asked who was at the meetings (293). Initially Hoffman evasively replied, “lawyers and staff,” but then, bafflingly, she became specific (297). The governor had attended some meetings, she said. Pressed for the names of the people who attended the meetings, Hoffman was again evasive and said she would look for any meeting notes, and if she had them, she would forward them to the committee. Lang seized on what Hoffman had just said: that the governor was present at some meetings. He asked her if she remembered any conversations with Blagojevich concerning rule-making. Hoffman said she had told the governor that there was precedent for the emergency rule but did not talk to him about “specific rule making” (300).

  Lang asked why HFS had included the expanded program in an emergency rule and then ignored JCAR’s decision to reject the rule. He asked if Hoffman disagreed with Vicki Thomas’s previous description of the FamilyCare expansion as “cavalierly” dealing with emergency rule-making. Larry Blust, who was acting as counsel to HFS, attempted to deflect the question and interjected that it was not the function of the department to “do those kinds of things,” but to the surprise of everyone, Hoffman cut him off in midsentence (302). She disagreed with Blust and said that it was the department’s responsibility to determine when an emergency exists. It was odd to see the witness disagree openly with her own counsel, and the exchange reinforced the comedic appearance of Blagojevich’s staff. The hearing began to take on a circus atmosphere and the audience became amused. Lang, the careful ringmaster, appeared to take no notice of the spectacle before him and continued with his questions for the record: Did Hoffman think JCAR was advisory? Had any court upheld that JCAR was advisory? When did HFS start to enroll people after the expansion was rejected? Though no definitive answers came from the witnesses, it had become clear that HFS had ignored JCAR’s ruling and continued with the expanded program.

  Other committee members continued with Lang’s line of questioning. Republican Patti Bellock from Westmont, referring to the press conference in November 2007 that Lang had noted earlier, quoting the governor as saying JCAR does not have constitutional authority to block the expansion rule and that he was moving ahead with signing up families at a cost to the state of $43 million. Bellock’s point was that the governor intentionally went ahead and dismissed JCAR’s authority. Chapin Rose, a former prosecutor from the east-central Illinois town of Mahomet, was confrontational. Like Lang, he sought to establish that no court had denied the authority of JCAR and attempted to discover who had made the decision to go forward with the expansion. Maram and Hoffman again deflected his questions. Jack Franks also attempted to have the witnesses state who initiated the expansion, but to no avail.

  The investigative committee sought to portray the Blagojevich administration as being fully aware of the consequences of expanding FamilyCare. It tried to identify the governor or his office as the impetus for the decision to ignore JCAR’s decision, and it attempted to show that the expanded program had no funding authorization from the general assembly. The witnesses from HFS facilitated these intentions. They were unprepared to face the questions posed by the hostile committee. They had no appreciation for the committee’s intent, and their evasive and bewildered manner portrayed the image the committee wished. The committee requested that the University of Illinois professors and the attorneys for the plaintiffs in the Caro case return for follow-up questions from the committee. Currie dismissed Maram and Hoffman. The committee had all it needed from them, but as it was preparing to question the previous witnesses, Sam Adam Jr., an attorney assisting Genson, asked to be recognized. He asked Maram, after Blagojevich disregarded JCAR’s decision, “how many brother and sister, Illinois citizens’ lives were saved as a result from that moment on? How many lives were saved because of his policy to go forward and give healthcare?” This diverged from the track of questioning by lead attorney Genson, whose questions and comments addressed points of law and established courtroom procedures. Adam’s questions, posed in street vernacular, represented an abstract attempt to solicit irrelevant emotion from a specific audience and present a different characteristic to Blagojevich’s defense. Genson argued points
of law, while Adam was a showman. His style was confrontational, and he relied on sensationalism and intimidation (364).22

  Lou Lang immediately objected to the question. Currie agreed and had the committee move on to follow-up questions for the University of Illinois professors. Lang and other committee members questioned Andrew Morriss and Robert Rich for the record. The questions and answers reaffirmed the authority of JCAR and the separation of power among the legislative and executive branches.

  Genson attempted to challenge the qualifications of the professors who claimed that Blagojevich should be impeached for ignoring JCAR’s ruling. Durkin objected and stated that Genson’s questions, as prescribed in the committee rules, should be of a clarification nature only. What Genson was doing, Durkin claimed, was cross-examination. The discussion between Genson and the committee grew heated, with members making objections to several of his questions and statements, but the lawyer endeavored to make his point: the JCAR case was not settled, the professors were merely speculating and giving their opinions, and thus there was no legal basis to justify Blagojevich being impeached. In a court of law his point would have relevance, but here it did not matter.