This article first appeared in the St. Louis Beacon - Dec. 18, 2008 - The legal tangle faced by the Illinois impeachment committee may have a legal solution. But a political solution may be the best way to solve the Blagojevich problem.
That's the assessment of both a lawyer and a political scientist.
Kathleen F. Brickey, the James Carr Professor of Criminal Jurisprudence at Washington University Law School, said in an interview that the impeachment committee could use the criminal complaint released last week by U.S. Attorney Patrick Fitzgerald as the basis for one of the impeachment charges against Gov. Rod Blagojevich.
Brickey said that Edward Genson, Blagojevich's lawyer, injected a "red herring" when he suggested that the House committee could not use the affidavit released by Fitzgerald last week. Genson had suggested that the affidavit would be "hearsay" and inadmissible. But Brickey said that the rules of evidence relating to hearsay would not apply to the impeachment inquiry.
"The rules of evidence are developed predominantly for the conduct of trials and judicial proceedings, not for the conduct of investigations and what the impeachment committee is doing is investigating," she said. She said she wasn't sure if hearsay rules would apply in a Senate trial, but said she doubted they would.
Brickey said the impeachment committee could also use an indictment as the basis of an impeachment article. Fitzgerald's request that President-elect Barack Obama hold off for a week in releasing his report on contacts with Blagojevich might mean that an indictment will be announced as soon as next week, she speculated.
Brickey also said she doubted that impeachment committee's decision to grant immunity to witnesses would create any problems for Fitzgerald's criminal inquiry - although the witnesses themselves would find themselves between a rock and a hard place.
Illinois law empowers the legislature to grant immunity to witnesses before legislative hearings. That requires a witness to testify on pain of contempt of court. The law protects the immunized witnesses from prosecution in state courts, but not federal courts. The state and federal courts are "different sovereigns," Brickey noted.
What Fitzgerald probably wants to avoid is the legislature calling his star witnesses and allowing defense lawyers to see their testimony before Fitzgerald can get his case in court. "You don't want them to trot out all of your star witnesses and have them publicly testify before you get your case to court because that could provide a blueprint for the defense lawyers' cross-examimnation at the criminal trial," she said.
Political Science Professor John S. Jackson of the Paul Simon Public Policy Institute at Southern Illinois University Carbondale thinks there is a political rather than a legal answer to the Blagojevich problem.
"The impeachment process is almost purely a political process however much it may be dressed up in the garb of a legal-appearing process," he wrote in an email. "That is, since the Illinois constitution doesn't specify any grounds for impeachment, it becomes whatever conduct becomes offensive enough for the majority (or super majority) in each house to decide that the governor must be removed for the public interest.
"It seems to me that they can ask Fitzgerald to give them a list of witnesses not to call, and they can comply. Same for any specific conversation or action the U.S. attorney puts off limits.
"They will still have plenty of ammo on the face of everything that was on the record a year ago plus all that has developed since - regardless of how much Fitzgerald supplies them it seems to me. (By the way, Fitzgerald himself can't just announce this thing to the world and then try to say, 'stay off my turf.' What did he expect anyway? He's got to cooperate with them as the legislature has to cooperate with him.)
"The legislature will dress everything they do up with a patina of procedural due process and substantive changes that have some legal implications, but its still a political decision - nothing more and nothing less."
In other words, the legislature, which has been thinking about impeaching Blagojevich for months, can go back to the charges it was orginally planning to use in impeachment.
Brickey agrees with Jackson that this political solution may be the best approach. She thinks that the impeachment committee can start with the older charges and then add the additional count based on the criminal information or the indictment.
Of course, Blagojevich could make it simple. He could tell the secretary of state that he is temporarily unable to perform the office. That would let Lt. Gov. Pat Quinn take over temporarily, even allowing him to make the U.S. Senate appointment. Blagojevich would preserve his right to declare himself ready at any time to step back in.
For the moment, however, Blagojevich is holding onto his office for dear life. It is his best bargaining chip in avoiding a long prison sentence.
The Illinois Supreme Court made clear earlier this week that it would not help solve the Blagojevich problem when it rejected, without comment, Attorney General Lisa Madigan's request that it declare the governor unfit to continue in office. One problem may have been that the state constitution speaks in terms of the governor's "ability" to continue in office, not his fitness.
Then again, as one judge observed in a confidential email, the court simply may not have wanted to wander into this political thicket.
Illinois Immunity Statute Reads:
Sec. 6. Any person may be compelled, by subpoena, to appear and give testimony as a witness, and produce papers and documents before either house or a committee thereof, or a joint committee of both houses. The subpoena shall be signed by the presiding officer of the house or the chairman of the committee before whom the witness is to appear, and may be served in the same manner as subpoenas from courts. But the testimony of a witness examined and testifying before either house of the General Assembly, any committee of either house, or any joint committee of the two houses, shall not be used as evidence in any criminal proceedings against such witness in any court of justice: Provided, that no official paper or record produced by such witness on such examination shall be held or taken to be included within the privilege of such evidence so as to protect such witness from any criminal proceeding as aforesaid, and no witness shall hereafter be allowed to refuse to testify to any fact, or to produce any paper touching which he shall be examined by either house, or by any of the committees, for the reason that his testimony touching such fact, or the production of such paper, may tend to disgrace him or render him infamous: Provided, further, that nothing in this act shall be construed to exempt any witness from prosecution and punishment for perjury committed by him in testifying as aforesaid.
William H. Freivogel, a longtime St. Louis journalist, heads the journalism school at Southern Illinois University Carbondale.