This article first appeared in the St. Louis Beacon, Jan. 26, 2009 - In his audacious public relations offensive, Gov. Rod Blagojevich has a never-ending list of fictional characters and great leaders to invoke in his defense, from Capra movie heroes to Nelson Mandela, Mahatma Gandhi, Martin Luther King and even Winston Churchill, whose book Blagojevich carried on his way to the talk shows.
In his legal defense, however, Blagojevich is just about out of ways to save his job.
By deciding to try his case in the court of public opinion while boycotting the Senate impeachment trial, Blagojevich seems to have surrendered his last legal weapon for delaying his removal from office. Senators have rejected Blagojevich's claim that the rules of the impeachment trial are unfair and are ready to move ahead today with or without Blagojevich present. In effect, Blagojevich's strategy seems to be hastening his removal from office, with some senators predicting that they will vote him out later this week.
If the governor harbors the hope that he can somehow appeal his removal to the courts, he probably is wrong. A conviction in an impeachment trial is final. The courts would almost certainly refuse to entertain any appeal, lawyers agree. Impeachment trials are political questions that are entirely up to the legislature.
Mike Lawrence, recently retired director of the Paul Simon Public Policy Institute at Southern Illinois University in Carbondale, said, "I think it likely will hasten his removal if he offers no defense." Lawrence added, "He is not going to influence the Senate with his assertion this is all a plot to raise taxes."
Illinois lawmakers seem unmoved either by the tax-hike claim or Blagojevich's veiled threat to pull them down with him. After wrapping himself in the mantle of Mandela, Gandhi and King, he told NBC that "cackling politicians want to get me out of the way because there's a whole bunch of things they don't want known about them and conversations they may have had with me. ..."
The governor who was so bold as to talk on government wiretaps about allegedly selling the president's Senate seat, is now in digital splendor warning that he has the goods on the politicians who will decide his fate.
State Sen. President John Cullerton, D-Chicago, challenged Blagojevich's claim that the rules for the Senate trial were unfair. He pointed out that they were patterned after the rules used in the impeachment trial of Bill Clinton and that Blagojevich had not filed a formal challenge to the rules before the deadline. (To read the text of the Senate impeachment rules, click here .)
Cullerton defended the two rules that Blagojevich particularly criticized: 8(b) and 15(f). Blagojevich's objection to 8(b) is that it says no objection may be made to the House impeachment record. Cullerton pointed out that the same rule states, however, that the governor can object to the admission or exclusion of evidence.
Rule 15(f) states that it is "never in order" to subpoena or request documents from a witness who would jeopardize the criminal case that U.S. Attorney Patrick Fitzgerald is assembling against Blagojevich. Cullerton said that the governor could request these witnesses to appear voluntarily. In response to Blagojevich's frequent mention that he wants to subpoena White House Chief of Staff Rahm Emanuel, Cullerton said the Senate would stipulate that Blagojevich did not try to sell the Senate seat to Emanuel.
What the Illinois Constitution says
"The House of Representatives has the sole power to conduct legislative investigations to determine the existence of cause for impeachment and, by the vote of a majority of the members elected, to impeach Executive and Judicial officers. Impeachments shall be tried by the Senate. When sitting for that purpose, Senators shall be upon oath, or affirmation, to do justice according to law. If the Governor is tried, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of two-thirds of the Senators elected. Judgment shall not extend beyond removal from office and disqualification to hold any public office of this State. An impeached officer, whether convicted or acquitted, shall be liable to prosecution, trial, judgment and punishment according to law."
Although the Senate proceeding is called a "trial," the rules make clear that it is not a criminal proceeding. "Formal rules of evidence" for criminal trials in state and federal court do not apply, the rules state. Evidence can be admitted that is "relevant, material and not redundant..."
Just as the state constitution's provisions on impeachment set no standard for what constitutes an impeachable offense, the rules do not state a standard. The senators will simply vote whether to sustain each article of impeachment. (To read the grounds for impeachment, click here .)
In addition, there is no agreed upon burden of proof. Even at the federal level, this standard never has been settled upon. Most experts suggest it should be less than the criminal standard of "beyond a reasonable doubt." Some suggest that a mere "preponderance of the evidence" is enough. Still others suggest a middle level of "clear and convincing" evidence.
If two-thirds of the senators vote to sustain at least one of the articles, Blagojevich is removed from office. The Senate could then, upon the motion of any senator, conduct another vote on whether he should be barred from ever again running for office.
The constitution does not provide for any appeal of the Senate verdict. At the federal level, the U.S. Supreme Court has ruled that an impeachment trial is not justiciable - cannot be decided by the courts. In a 1993 decision involving federal judge Walter L. Nixon, the court ruled that the courts lack power to review a Senate trial. The reason, Chief Justice William H. Rehnquist said, is that the matter is a political question.
Professor Joel Goldstein, a constitutional law expert at Saint Louis University Law School, said, "In Nixon v. United States, the court held that the Senate's duty to 'try' an impeached official was not subject to judicial review because 'try' as used in the Constitution was not susceptible to judicial definition. In essence, the Senate might elect to 'try' an impeached official in a way which would not be acceptable in court."
The Illinois courts likely would look to the Nixon decision for guidance because they too recognize a political question doctrine. In a 1995 decision , the Illinois Supreme Court refused to order an increase in state funding of public education because the court considered it a political question better decided by the legislative branch.
Although running out of legal options, the governor's PR options seem only to expand. On Sunday, he hired a public relations agency - The Publicity Agency - known for representing unpopular, high-profile clients. The agency already has set up a Twitter feed to spit out short bursts of news about the governor. As the day of the Blagojevich impeachment trial was just beginning, the Twitter feed informed those paying attention that the governor had arrived in New York for his media appearances, 1,000 miles away from the trial back home.
William H. Freivogel heads the journalism school at Southern Illinois University Carbondale.
