A Just Cause (31 page)

For a moment after Clayborne's remarks, an awkward silence overtook the chamber. The senate members sat quietly and the galleries remained still, as all those in attendance anticipated the final action. Many veteran observers in the galleries had witnessed hundreds of senate votes, but this moment was different. The highest official in Illinois government, elected by the sovereign will of the people, was about to be cast out of office.

Then Cullerton declared the debate concluded and told the senate sergeant at arms to inform the house prosecutor and the chief justice to return to the senate chamber. He relinquished the senate chair to Chief Justice Fitzgerald. The chief justice, in his usual prompt manner, proceeded to explain that under the senate impeachment rules adopted by SR 6, the senate would first vote to sustain the articles of impeachment. If the two-thirds majority vote required for the governor to be removed from office was not obtained, then a judgment of acquittal would be entered in the senate journal. If it was obtained, then the chief justice would announce a judgment of conviction, which would be entered in the senate journal, and the governor would be removed from office. Additionally, if a two-thirds vote to convict was obtained, the senate would take a second vote to disqualify Rod Blagojevich from holding future public office in the state, which would also require a two-thirds majority. Each senator would rise
as his or her name was called and answer yes to convict or no to acquit, while simultaneously registering an electronic vote (750–52).

The chief justice instructed Deb Shipley, the secretary of the senate, to call the names of the senators and record their responses. As the names were called in alphabetical order, each proceeded to vote yes for conviction. When the secretary called the name of the senate president, the last to vote according to senate protocol, Cullerton rose and voted yes, making the vote unanimous. As soon as Cullerton said yes, Chief Justice Fitzgerald uttered the words that would render the senate's action official: “take the record.” Whenever a recorded vote is taken, the presiding officer of the senate instructs the secretary to “take the record.” The secretary records the vote upon hearing the pronouncement of the letter
d
in the word
record
. Cullerton had been intently focused on the vote tally board as he said yes, and the chief justice pronounced “take the record” before the senate president had a chance to press his electronic switch and confirm his voice vote. The electronic result was fifty-eight senators voting yes, as the senate president's vote was not recorded.

Some confusion and discussion followed, and Fitzgerald informed the secretary that the senate would redo the roll call. He then read the question a second time, asking the senate if they sustained the articles of impeachment. The vote the second time did not require each senator to rise and state his or her decision but was accomplished electronically. This time the vote was fifty-nine in favor of the question. The chief justice then uttered the words announcing the impeachment of an officeholder for the first time in the history of Illinois: “I now pronounce the judgment of conviction against Rod R. Blagojevich, thereby removing him from the Office of Governor effective immediately” (758).

The gravity of the situation was suspended momentarily when Fitzgerald immediately asked if there was a motion to disqualify the governor from holding future office in Illinois. Senator Michael Frerichs, a Democrat from Champaign, rose and made the motion. The secretary called the roll, and each senator responded in the same manner as in the first vote, both verbally and electronically. The vote was again unanimous: all fifty-nine senators voted yes.

The chief justice then said, “I now pronounce judgment of disqualification against Rod R. Blagojevich, thereby disqualifying him from holding any future public office of this state effective immediately,” and announced that he was signing an order reporting the senate's judgment. He instructed
the secretary of the senate to file the order with the secretary of state and officially notify the house of the senate's action (766).

The impeachment trial had come to an end, but the senate's procedural commitments postponed the chance for measured reflection, for a while at least. Fitzgerald thanked the senate for approaching the proceedings of the last four days with seriousness and said he was proud of their conduct. In the galleries, the spectators withdrew from their intense postures and seemed to relax. Cullerton and Radogno offered a resolution congratulating the chief justice for his efforts, and it was adopted. John Cullerton then moved that the senate arise from “sitting as an impeachment tribunal,” and Fitzgerald declared that all matters of the impeachment had concluded (767–71).

A
s the state plane took off from the Illinois Aeronautics Terminal, on the north end of Abraham Lincoln Capital Airport in Springfield, it banked and flew northeast toward Chicago. Below, the corn and bean fields, barren in winter, stretched endlessly. Blagojevich was taking his last ride as governor. The phone rang but, according to the
New York Times
reporter on board, the governor instructed his aides not to answer it.
¹
When the plane landed at Chicago Midway International Airport, it taxied to the west side. Not knowing whether the senate action had been completed, his state police bodyguards took him home for the last time.
²

Outside Blagojevich's Northwest Side home, a small crowd had gathered and offered cheering support. The media covered all aspects of the governor's movements—at the airport, along the route, and at his home. With his wife by his side, Blagojevich offered a few brief statements to the press and the crowd. Then he entered the house, the door closed, and six
years of political turmoil and kleptocratic administration in Illinois had come to an end. The senate had voted, and Rod Blagojevich was governor no longer.

The legislature had accomplished the unprecedented. It had exercised its prerogative and used its discretion to determine cause and remove Rod Blagojevich from office. It was a political act, but not an act of a passionate partisan majority, something the founders had feared. It is difficult to generalize why the vast majority of Democrats and Republicans overwhelmingly supported removal. Each legislator had personal reasons that prompted his or her decision to remove the governor. Blagojevich's methods of administration, disregard of the legislature, and bizarre behavior during his past six years as governor had alienated many. He had few supporters and several enemies. While some legislators felt that their past expressions of opposition toward Blagojevich were at last vindicated, few felt that they needed to settle a vendetta. The evidence for cause was overwhelming, and Blagojevich's arrest, expected indictment, and subsequent trial made his continued term as governor impossible. The few who were allied with Blagojevich sought political cover and voted with the majority to remove him. The action taken by the senate was unanimous, and in the house only the governor's sister-in-law had stood by him.

The rule of law is a central component to any theory of liberal constitutionalism, and it is a sacred component of the American system of government. But the actions of the Illinois legislature were not bound by the prescribed rule of law. The prerogative of impeachment and removal was granted to the legislature by the 1970 Illinois Constitution. The convention delegates provided only the tacit assumption that reasonable judgments would be made by virtuous people. The action of the legislature to impeach and remove was deemed by the constitutional convention to be discretionary.

Although the house hearings and the senate trial were not bound by the constraints of courtroom procedure, the legislative leaders did their best to follow the practice and precedent of the written law. During the house hearings, the governor was invited to appear, and the defense was allowed to submit witnesses and ask clarifying questions of the witnesses summoned by the house. The governor was also invited to participate in the trial and offer a defense, but he chose not to. The individuals who participated in the hearings and the trial were conscious of the sanctity of the rule of law. They did their best to adhere to the principle of due process
and the written law while confronting extraordinary circumstances and exercising the constitutional prerogative to be outside the law.

Prerogative, it has been argued, is an extralegal means of serving the natural law. As Clement Fatovic said in
Outside the Law
, it is “not a substitute for law, but a supplement to law.”
³
Prerogative is a means of meeting contingencies not addressed by the written law. “It was one thing to accept a certain level of necessary legality,” wrote Fatovic; “it was an entirely different thing to tolerate any degree of calculated immorality.”
⁴
Many of the Blagojevich administration's actions were characterized by gross incompetence and malfeasance. Moreover, the administration operated as a criminal enterprise, later substantiated by the convictions of the governor and his associates, with the governor receiving a sentence of fourteen years in prison. The action of the legislature was guided by the common-law maxim
salus populi suprema lex est
, “the welfare of the people is the supreme law.”
⁵

The impeachment and removal of Rod Blagojevich tested the Illinois Constitution, as well as the women and men of the Illinois legislature. By conferring the prerogative to impeach for cause, the delegates to the 1970 Constitutional Convention accepted that impeachment was “a political thing,” but they had tacit faith that legislators would make “good political judgments.”
⁶
Whether motivated by political circumstances or institutional constraints, the Illinois legislature has been remarkably restrained over the years. The leadership of both parties in the house and the senate understood the implications of removing the governor and the precedent it could set for themselves and for future office holders. Individual members of the legislature were deeply saddened, embarrassed, and angry.
⁷
For the legislative leaders, impeachment and removal remained the final option, and they acted quickly and decisively after the governor's arrest.

The impeachment and removal of Rod Blagojevich did not result from a movement or spirit and did not inaugurate a new chapter in Illinois' political process. There was no sustained public demand for a change in Illinois' political culture. Rather, removal was a rational, pragmatic response to a contingency. Blagojevich had exceeded the limits of realpolitik. He had allowed his administration, from the beginning, to operate as a criminal enterprise.

Prologue

1
. Rod Blagojevich, governor of Illinois, Executive Order No. 10, 2003, “Executive Order to Consolidate Facilities Management, Internal Auditing, and Staff Legal Functions,” April 9, 2003.

2
. Jeff Coen and John Chase,
Golden: How Rod Blagojevich Talked Himself out of Office and into Prison
(Chicago: Chicago Review Press, 2012), 163–72.

3
. Ill. Const., art. 4, sec. 5.

4
. John Fritchey, taped interview by the author, March 18, 2014.

5
. Ill. Const., art. 4, sec. 14.

6
. Ron Smith, interview by the author, May 15, 2014; Ann Lousin, interview by the author, May 15, 2014.

7
.
Debates of the Constitutional Convention State of Illinois, 1870
, Springfield; Arthur Charles Cole, comp.,
The Constitutional Debates of 1847
, 2 vols. (Urbana: University of Illinois Press, 1919). Cole used period newspapers as the basis for his synthesis. The debates of the 1862 convention were not collected in book form because the resulting constitution failed to be ratified. These debates can be found in issues of the Springfield newspapers the
State Journal
and the
State Register
published during the convention, both of which carried word-for-word coverage.

8
. Cass R. Sunstein,
Designing Democracy: What Constitutions Do
(New York: Oxford University Press, 2001); Richard A. Posner,
An Affair of State: The Investigation, Impeachment, and Trial of President Clinton
(Cambridge, MA: Harvard University Press, 1999); Roger Foster,
Commentaries on the Constitution of the United States: Historical and Judicial
(Boston: Boston Book Company, 1895).

9
. Bernard H. Sieracki,
Order and Opportunity: The Development of the Illinois Railroad and Warehouse Commission
(Ann Arbor: ProQuest, 2008).

10
. “Records of the Senate as a Court of Impeachment in the Trial of the Hon. Theophilus W. Smith,” in
Journal of the Senate
(Vandalia, IL: Grelner and Sherman, 1833); Usher Linder,
Reminiscences of the Bench and Bar of Illinois
(Chicago: Chicago Legal News Company, 1879); John Palmer,
The Bench and Bar of Illinois
(Chicago: Lewis Publishing Company, 1899); Thomas Ford,
A History of Illinois: From Its Commencement as a State in 1818 to 1847
(1854; repr., Urbana: University of Illinois Press, 1995); Sieracki,
Order and Opportunity.

1. The Crisis Erupts

1
. Paul Meincke, taped interview by the author, August 14, 2013.

2
. Andrew Porte, e-mail message to Paul Meincke, July 31, 2013.

3
. Chuck Goudie, e-mail message to Paul Meincke, July 31, 2013.

4
. Julie Unruh, telephone interview by the author, June 26, 2014.

5
. Jim Durkin, taped interview by the author, January 15, 2013.

6
. Ibid.

7
. Jack Franks, taped interview by the author, February 6, 2013.

8
. Fritchey, interview.

9
. Ibid.

10
. Andy Manar, taped interview by the author, January 24, 2012.

11
. Clayton Harris, taped interview by the author, July 25, 2014.

12
. Ibid.

13
. Ibid.

14
. Michael Madigan, taped interview by the author, November 16, 2013.

15
. Ibid.; Larry Bomke, taped interview by the author, June 6, 2013.

16
. Ill. Const., art. 5, sec. 6

17
. David Ellis, taped interview by the author, October 15, 2012; Madigan, interview.

18
. Ellis, interview.

19
. Madigan, interview.

20
. John Cullerton, taped interview by the author, July 14, 2014.

21
. Madigan, interview.

22
. Emil Jones, taped interview by the author, March 5, 2013.

23
. Frank Watson, taped interview by the author, May 8, 2013.

24
. Ibid.

25
. Harris, interview.

26
. Senator Michael Jacobs, taped interview by the author, February 13, 2013.

27
. Watson, interview; Senator William Haine, taped interview by the author, February 26, 2014; Senator Dave Luechtefeld, taped interview by the author, April 18, 2013.

2. Cause for Impeachment

1
. Ellis, interview; Madigan, interview.

2
. Ill. Const., art. 4, sec. 14.

3
. House rules established that all legislative initiatives are sent to the Rules Committee for assignment to committees and resolutions are sent to the full house for further consideration. The Rules Committee is controlled by the majority party. If an initiative is not voted out of the Rules Committee, it receives no further consideration.

4
. Illinois House of Representatives, 95th General Assembly, Transcription Debate, December 15, 2008,
http://www.ilga.gov/house/transcripts/htrans95/09500295.pdf
.

5
. Barbara Currie, taped interview by the author, December 17, 2012.

6
. Madigan, interview; Ellis, interview.

7
. Illinois Office of the Auditor General,
Management Audit of the Flu Vaccine Procurement and the I-SaveRx Program
(Springfield: Illinois Office of the Auditor General, 2006), 24 (hereafter cited as
Management Audit
).

8
. Ibid.; Illinois House of Representatives, Proposed Report of the Special Investigative Committee, 95th General Assembly, 2009, 35 (hereafter cited as Proposed Report of the SIC).

9
. Proposed Report of the SIC, 37.

10
.
Management Audit
, 33, 36.

11
. Proposed Report of the SIC, 38;
Management Audit
, 26.

12
.
Management Audit
, 48.

13
. Proposed Report of the SIC, 40.

14
. Franks, interview.

15
. Illinois HR Res. 394, 94th General Assembly (2005); Illinois HJ Res. 040, 94th General Assembly (2005).

16
. Bill Holland, taped interview by the author, June 25, 2013.

17
. Ibid.

18
.
Management Audit
, Synopsis I.

19
. Jack Franks declined to name the individual who contacted him. Franks, interview.

20
. Illinois Office of the Auditor General, Department of Central Management Services Compliance Examination, April 1, 2005 (hereafter cited as Compliance Examination).

21
. Proposed Report of the SIC, 44.

22
. Compliance Examination, 12.

23
. Franks, interview; Illinois House of Representatives, 95th General Assembly, House Impeachment Committee Transcript, December 18, 2008, 424,
http://www.ilga.gov/senate/house%20impeachment%20records/Committee%20transcripts/Transcript%2012-18-08.pdf
.

24
. Compliance Examination, 16–17.

25
. IPAM was contracted to catalog the state's assets. The principle owner of the company was the Chicago-based Mesirow Stein Development Services.

26
. 30 ILCS 500/20–80(b).

27
. Compliance Examination, 34.

28
. Holland, interview.

29
. Ibid.

30
. Vicki Thomas, testimony, House Impeachment Committee Transcript, December 18, 2008.

31
. Andrew Morriss and Robert Rich, testimony, House Impeachment Committee Transcript, December 18, 2008, 199–210.

32
. An emergency rule is a procedure that is reserved for emergency situations and allows an agency to implement rules without immediate review by JCAR. The emergency rule is ultimately reviewed by JCAR and follows normal review.

33
. Robert Rich, interview by the author, July 25, 2013.

34
. Ibid.

35
. Matt Brown, testimony, Illinois House of Representatives, 95th General Assembly, House Impeachment Committee Transcript, December 22, 2008, 603,
http://www.ilga.gov/senate/house%20impeachment%20records/Committee%20transcripts/Transcript%2012-22-08.pdf
.

36
. Matt Brown, interview by the author, July 31, 2013.

37
. Brown, interview.

38
. Ibid.

3. The House Investigation

1
. Jil Tracy, interview by the author, July 20, 2013.

2
. Illinois House of Representatives, 95th General Assembly, House Impeachment Committee Transcript, December 16, 2008, 5–9,
http://www.ilga.govsenate/house%20impeachment%20records/Committee%20transcripts/Transcript%2012-16-08.pdf
.

3
. Ibid., 10–11.

4
. Edward Genson, taped interview by the author, May 6, 2013.

5
. Illinois House of Representatives, 95th General Assembly, House Impeachment Committee Transcript, December 17, 2008,
http://www.ilga.gov/senate/house%20impeachment%20records/Committee%20transcripts/Transcript%2012-17-08.pdf
. This and subsequent page numbers in parentheses in this section are from this source.

6
. Durkin, interview.

7
. Madigan, interview.

8
. Illinois House of Representatives, Committee Rules of the Special Investigative Committee of the 95th General Assembly, December 17, 2008,
http://www.ilga.gov/house/committees/95Documents/Committee%20Rules%20of%20the%20Special%20Investigative%20Committee%20of%20the%2095th%20General%20Assembly.pdf
.

9
. Ali Ata pleaded guilty to tax fraud and making false statements to the FBI. He testified at the trial of Tony Rezko that he had made campaign donations to Blagojevich in direct exchange for an appointment as executive director of the Illinois Finance Authority and that he was cooperating with the federal prosecutors. Joe Cari was a former Democratic National Committee finance chairman and a director of Health Point, a private equity fund that received $35 million in investment contracts from the Illinois retirement system. In 2003, Cari pleaded guilty of attempting to extort money from JER, a real estate investment firm seeking an investment contract with the Illinois Teachers Retirement System. Cari also testified to scheming with Rod Blagojevich, Chris Kelly, and Rezko to develop an extortion plan to require individuals who received state contracts to make political contributions.

10
.
United States of America v. Rod R. Blagojevich and John Harris
, US Dist. Ct., N. Dist. Ill., East. Div. (2008). Legislators used the words
criminal complaint
and
affidavit
interchangeably to refer to the court documents.

11
. Illinois HB 824, 95th General Assembly (2008). HB 824 was passed by the Illinois legislature in 2008 and subsequently amended by the governor to include all members of the General Assembly. The legislature overrode the governor's amendatory veto, and HB 824 became law on January 1, 2009.

12
.
US v. Blagojevich.
The Illinois Finance Authority (IFA) was created to “accomplish and carry out policies of the State which are in the interest of the
State and of its taxpayers and residents.” The IFA is authorized to accept state and federal funds for use in connection with the IFA's purposes.

13
. Samuel P. Huntington,
American Politics: The Promise of Disharmony
(Cambridge, MA: Harvard University Press, 1981).

14
. Alonzo “Lon” Monk initially declined to cooperate with federal prosecutors but later reconsidered. He pleaded guilty to wire fraud and testified against Rod Blagojevich in exchange for a recommended sentence of two years. In April 2012 he was sentenced to two years in prison. “Ex Blago Aide Lon Monk Sentenced to Two Years in Prison,”
Chicago Sun-Times
, April 3, 2012.

15
. Antoin “Tony” Rezko was a private businessman who became associated with Blagojevich prior to his election as governor. Rezko is credited with helping set up the Blagojevich administration. Tony Rezko never held an official position in state government, but he chose who served on state boards and was one of the most influential advisors in the governor's inner circle. He was charged in the federal fraud investigation known as Operation Board Games with twenty-four counts of wire fraud, bribery, money laundering, and attempted extortion. It was claimed that Rezko extorted millions of dollars from firms seeking to do business with the state. In 2008 he was found guilty of sixteen of the twenty-four charges, and in 2011 he was sentenced to ten and a half years in prison.

16
.
US v Blagojevich
, 9, 16.

17
. Ibid., 13–16.

18
. Tracy, interview.

19
. Illinois House of Representatives, 95th General Assembly, House Impeachment Committee Transcript, December 18, 2008,
http://www.ilga.gov/senate/house%20impeachment%20records/Committee%20transcripts/Transcript%2012-18-08.pdf
. These and subsequent page numbers in parentheses in this section are from this source.

20
. Vicki Thomas, taped interview by the author, August 29, 2013.

21
. Barry Maram said that he preferred not to discuss the impeachment hearings in a telephone conversation with the author, September 10, 2013.

22
. Genson, interview. After agreeing to represent Blagojevich, Genson contacted Sam Adam Jr. and invited him to join the case. Genson had been a friend of Adam's father, Sam Adam Sr., and knew both men well. When Adam Jr. asked to include his father in the case, Genson refused at first but later consented. A rift over defense tactics developed quickly between Genson and the Adam father-and-son team, and as a result, Genson resigned from the case the following month.

23
. Durkin, interview.

24
. Illinois House of Representatives, 95th General Assembly, House Impeachment Committee Transcript, December 22, 2008,
http://www.ilga.gov/senate/house%20impeachment%20records/Committee%20transcripts/Transcript%2012-22-08.pdf
. These and subsequent page numbers in parentheses in this section are from this source.