When Gov. Rod Blagojevich’s impeachment trial begins at noon Monday, there is likely to be a noted absence: the governor himself, or lawyers representing him.
So far, the Illinois governor has refused to take part, calling the trial “a trampling of the [US] Constitution.” His lawyers have labeled the impeachment a “lynching,” and declared a week ago that they wouldn’t take part.
Mr. Blagojevich has missed every deadline for requesting or challenging witnesses or evidence. He appears instead to be trying to make his case via a national media blitz, hiring a PR firm and appearing Monday on the TV programs “Good Morning America,” “The View,” and “Larry King Live.”
Among the possibilities: His legal team doesn’t know how to defend him and, by not showing up, hopes to argue that it’s an unfair system; or it wants to focus its efforts on the criminal trial, because almost everyone expects the impeachment trial to result in a conviction, Professor Mooney says.
It’s also possible that Blagojevich has simply run out of money to pay lawyers, lacks a staff to develop a coherent strategy, and has let deadlines slide by without knowing what to do, he adds.
“Who knows what goes on in his head,” says Mooney, echoing the thoughts of many Illinoisans as they watched their governor relaunch his PR campaign Friday with a press conference and radio and newspaper interviews. In them, the two-term Democratic governor suggested that the impeachment process was part of a scheme by the legislature and Lt. Gov. Pat Quinn to raise income taxes in the state and to oust him because of his independent streak.
Lead defense lawyer quits
Blagojevich also called on local newspapers – particularly the Chicago Tribune and Sun-Times – to defend him and to attack the trial in editorials. The plea was not without irony, as the Tribune noted in an editorial Saturday, in that part of the criminal complaint against the governor alleges that he tried to have members of the Tribune’s editorial page fired this fall for criticizing him.
The media blitz appears to be one reason Blagojevich’s lead lawyer, Ed Genson, quit Friday, saying, “I never require a client to do what I say, but I do require them to at least listen.”
At the heart of Blagojevich’s arguments is his position that the trial is stacked against him and denies him the means to effectively defend himself.
Impeachment trials are rare, and since they are considered a political proceeding, they are not subject to the normal rules of a courtroom. While Thomas Fitzgerald, the Illinois Supreme Court’s chief justice, will preside, state senators can overrule his decisions, and there is no guideline as to what is the standard of proof of guilt.
“What guides fair procedures in an impeachment is not the kind of due process concerns that govern a civil or criminal trial,” says Mark Rosen, a professor at Chicago-Kent College of Law in Chicago. Rather, what is important is the public “perception that they’re structuring it in such a way that they’re not going to enfeeble the office of governor” by making it easy for him to be impeached, he says.
Blagojevich has complained that he is unable to call witnesses or introduce evidence in his defense, and that the articles of impeachment drafted by the Illinois House have been automatically admitted as evidence, without his being able to challenge them.
In fact, the rules do allow Blagojevich to challenge the articles and to request that the Senate subpoena witnesses, but he missed the deadlines for both requests, says Rikeesha Phelon, a spokeswoman for John Cullerton, Senate president.
“There has been fair opportunity,” Ms. Phelon says. “Unfortunately, rather than participate, he chose to complain after the deadlines.”
The state Senate is also cooperating with the US attorney’s office by deeming off limits a number of witnesses who might affect the criminal case against Blagojevich. Still, some of the impeachable offenses cited by the House are separate from the criminal complaint against Blagojevich. On Friday, a judge ruled that four FBI tapes of the governor’s conversations can be released to the legislature for use in the impeachment trial.
Public must see trial as fair
At this point, Phelon says, the proceedings will go ahead with or without Blagojevich’s participation, though they may last less than the two weeks originally allotted if no defense is presented.
Although the Senate is permitted to set its own rules for the trial, the proceedings still must be perceived as fair, say many observers, so that the office of governor isn’t weakened by a dangerous precedent. In that sense, the lawmakers have been thrown a bit of a curveball by the governor’s apparent refusal to participate.
“If that [refusal] persists, it’s a source of considerable disappointment and concern,” says Dawn Clark Netsch, a former Illinois comptroller, candidate for governor in 1994, and currently a law school professor at Northwestern University.
“Assuming he’s convicted, we want to be able to look back and say it was fair,” Professor Netsch says. “If I were in [the senators’] position, I would be looking to see if there are any options that would allow a case to be made” in his defense.
In the end, Netsch adds, the purpose of this impeachment is to remove from office someone who seems to have abused his power to the extent that he should no longer serve. “Put in those terms, I’m quite comfortable with it,” she says. “It’s not a criminal trial. He doesn’t go to prison. He doesn’t pay a fine.”