UPDATE: While the Chicago Sun-Times is now reporting, based on anonymous sources, that the governor’s attorneys will not challenge the Senate trial in federal court, constitutional law experts say even if he did, the court likely wouldn’t touch the case with a 10-foot pole because it’s a political matter at the state level.
John Nowak, the Simon chair in Constitutional Law at Loyola University Law School and longtime law professor at the University of Illinois at Urbana-Champaign, said: “While we don’t have a precise case on this, I would assume that the federal courts would rule that questions regarding the impeachment of a governor must be settled only by the political branches. That means the elected branches, just like all questions of impeachment of a president or a federal judge, have to be settled by Congress.”
The governor issued a statement this morning to say his defiance of the impeachment process has nothing to do with him but everything to do with the office of governor. “What the Senate and House are trying to do is to thwart the will of the people and remove a governor elected twice by the people without a fair hearing, without due process, and without giving me the right — the most basic right every citizen in our country has — and that is the right to call witnesses,” Blagojevich said in the statement. He said he would like to call Rahm Emanuel, President Barack Obama’s chief of staff, whose office said nothing improper took place during conversations about filling Obama’s vacant U.S. Senate seat.
Per the Senate trial rules (Rule 15), the governor’s team does have the ability to call witnesses, although they missed the 4 p.m. deadline yesterday to file motions to call witnesses. That’s because the governor’s attorneys, including Chicago lawyers Sheldon Sorosky and Edward Genson, are not participating in the trial because, the governor said, “the rules which don’t allow me, as the governor, to call witnesses are unfair, and deny fundamental due process.”
He ended by saying: You can’t possibly defend yourself when they say you did something and they don't let you call witnesses to say you didn't do it. I’ll have more to say later.”
Blagojevich’s press office has “not been made aware of any plans” by the governor or by the attorneys to fight the Senate trial in an actual court, according to spokesman Brian Williamsen.
Meanwhile, things are taking shape for the Senate trial. The Illinois House prosecutor who will present the case against Blagojevich wants to hear from the FBI agent who listened to recorded conversations between the governor and his inner circle. But the subpoena request must be approved by a majority of Senate members, as well as the U.S. attorney’s office in northern Illinois, which obtained the recordings as part of the ongoing criminal investigation against the governor.
David Ellis, the House prosecutor, filed a motion last night to seek a subpoena of FBI Special Agent Daniel Cain. Ellis’s motion says Cain is familiar with every recording mentioned in the criminal complaint against Blagojevich. It would be relevant, Ellis writes, because the Illinois House based the first five reasons to impeach on allegations outlined in that criminal complaint.
Ellis also is seeking voluntary testimony from people who testified before an impeachment inquiry committee of the House.
Here is Ellis' list of desired witnesses:
- Andrew Morriss, professor with the Institute for Government and Public Affairs at the University of Illinois at Urbana-Champaign, about the governor’s alleged abuse of his administrative powers and the defiance of the Joint Committee on Administrative Rules (Exhibit 50).
- Auditor General William Holland about audits of the governor’s importation of European flu vaccine and prescription drugs, as well as the administration’s initiative to combine state agency functions (Exhibit 6a and 6b).
- Former Assistant U.S. Attorney John Scully of Lake Villa about the process of getting approval to intercept oral and phone conversations (Exhibit 57).
- Rep. Chapin Rose, a Mahomet Republican, summarizing the plea agreements of Ali Ata, Joseph Cari and Tony Rezko, all targets of federal investigations involving the decision-making process of the Health Facilities Planning Board (Exhibits 4, 5).
- Rep. Connie Howard, a Chicago Democrat, about the drop of the state’s credit rating since the governor’s December 9 arrest (Exhibit 37).
- Rep. David Miller, a Lynwood Democrat, about a 2004 report by the executive inspector general that describes “endemic hiring fraud” in the Illinois Department of Employment Security (Exhibit 43).
- Rep. Gary Hannig, a Litchfield Democrat, about the governor’s alleged plot to withhold state funds from the Tribune Co. unless it fired an editorial board member.
- Rep. Jack Franks, a Woodstock Democrat, who would talk about the governor’s attempts to import European flu vaccine, prescription drugs and efficiency initiatives (Exhibit 61).
- Rep. Jim Durkin, a Western Springs Republican, about the ability of investigators to tap phone and personal conversations and the governor’s alleged plan to auction off the U.S. Senate seat vacated by President Barack Obama.
- Rep. Lou Lang, a Skokie Democrat, describing Blagojevich’s attempts to skirt the Joint Committee on Administrative Rules and to withhold information about his expanded health care program, FamilyCare (Exhibit 66).
- Rep. Susana Mendoza, a Chicago Democrat, about allegations that the governor tried to trade official acts for campaign contributions from horse racing executives, a tollway contractor and a hospital executive.
- Special Agent Daniel Cain about his signed affidavit (Exhibit 3) and his positive identification of the governor as the man whose voice was recorded by the FBI.
- Vicki Thomas, executive director of the Joint Committee on Administrative Rules, about the panel’s objection to the governor’s plan to expand a state health insurance program (Exhibit 53).