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SOCIAL STUDIES

A Far From Unimpeachable Impeachment

Blagojevich's ouster was not a railroading, but it looked like one.

by Jonathan Rauch

Saturday, Feb. 7, 2009


Suppose, at least for the time it takes to read the next several paragraphs, that the ousting of Illinois Gov. Rod Blagojevich was a political railroading. Suppose the intention, whether out of malice or opportunism or both, was to overturn the 2006 election. What, actually, would that have looked like? And how different would it have looked from what happened last week?

I think that Blagojevich is probably a crook, and so does everyone else, so the question may seem academic. But it's not. Overturning an election is fundamentally antidemocratic and, in a democracy, potentially dangerous. When it needs to be done, the proceedings need to be objectively distinguishable from a railroading. In other words, the rules must be scrupulously fair. Otherwise, the process for removing corrupt politicians becomes, itself, indistinguishable from political corruption.

Blagojevich was elected governor in 2002, then re-elected in 2006 with more than 1.6 million votes. The New York Times reports that he "was widely unpopular with lawmakers long before his arrest on federal corruption charges." If his enemies had decided to get him out of the way, what sorts of things might you expect to happen?

In the scramble to remove Blagojevich, too many corners were cut.

Well, a federal prosecutor, after wiretapping and arresting him, might announce the arrest at a dramatic, even flamboyant, press conference. He might reveal only very short snippets of the wiretaps, knowing that the full record would not be available to the defense, let alone the public, for months to come.

Instead of dryly reading the charges or letting the complaint speak for itself, he might use language more typical of a campaign ad or a Wall Street Journal editorial. "Governor Blagojevich has taken us to a truly new low." "The conduct would make Lincoln roll over in his grave." "The conduct we have before us is appalling."

There is nothing necessarily improper about a prosecutor's making a strong case to the public. But prosecutors rarely sound as strident as U.S. Attorney Patrick Fitzgerald did in Chicago on December 9. If a prosecutor wanted to garner spectacular national headlines and end a politician's career long before a trial could begin, that press conference is how it might sound.

What next? You might expect to see politicians trip over themselves to disown and condemn the governor, talking and behaving as if he had already been convicted. More, you might see many of his fellow Democrats cast about, quite explicitly, for a way to get him out of office before he could cause political damage to them or to a newly elected Democratic president who happens to hail from Illinois.

There was a legitimate reason to hurry in the Blagojevich case. The most notorious charge against him was that he intended to sell a vacant U.S. Senate seat. Allowing that to happen could spread the taint of corruption to Washington.

But then the governor obviates this problem by making a perfectly respectable Senate appointment. No corruption or impropriety at all. His appointee is duly seated. The governor himself is now under minute surveillance. He is probably less able to get away with extortion or racketeering than any politician in the country. He says he can get on with his job while preparing a criminal defense, and this, while debatable, may be true. Other public officials have defended themselves while serving.

Yet the effort to remove him immediately, despite having lost its most compelling rationale, only gathers momentum. That might be because Illinois politicians think that the governor is dysfunctional and fear that state business may grind to a halt. But it is equally consistent with an unseemly haste to pitch him overboard before the political winds change. In any case, at the first opportunity, the Illinois House votes to impeach. The state Senate will conduct a trial.

The governor now lets it be known that he wants to subpoena more than a dozen witnesses who are named in the U.S. attorney's complaint, including (uh-oh!) the new president's chief of staff. The Senate instead imposes a rule that (in The Times's words) "bars witnesses from being subpoenaed if federal prosecutors believe it might compromise their case." True, the impeachment prosecutors would have to abide by the same restriction. But that, of course, gives only cold comfort to a defendant whose witnesses are being vetted by the prosecution.

Was the purpose of the Senate trial to establish the truth? If so, one would presumably want to let the defense call whatever witnesses it needed, whether the U.S. attorney liked it or not. Or, on the other hand, was the trial's purpose to get rid of the governor by hook or by crook? In that case, one might want to work with the prosecutor to make sure that prison remained available as a backstop for impeachment.

The governor, protesting that the rules are stacked and the outcome is preordained, boycotts most of the trial, giving only a closing statement. His accusers characterize his boycott as suggestive of guilt -- even though the governor's removal is indeed, for all intents and purposes, a foregone conclusion. After all, the political establishment has made no secret of its desire to unseat him.

In a particularly cheeky bit of bootstrapping, the Senate prosecutor cites that very same political establishment's calls for the governor's resignation as grounds for convicting. "When every constitutional officer -- when the president of the United States! -- is calling for him to resign," says the prosecutor, in his final remarks, "does that not speak to the harm inflicted on this state, the stain on this state, from what the governor has done?" Well, no. But it does say something about the desire of the president and Illinois's politicians to get rid of him.

And so it comes to pass: On the basis of six minutes of wiretapped conversation -- six minutes out of what the Chicago Tribune reported were "thousands of hours of recordings made of the governor and his allies" -- the governor is convicted by the Senate and turned out of office. Everyone exhales. Illinois and the country turn the page.

Or do they?

The trouble with this story is not that the proceedings were demonstrably a railroading. It's that they did not look different enough from a railroading. If you wanted to frame an honest man, it might look much the same.

For a few reasons, I don't think Blagojevich is an honest man. The snippets of wiretap released so far by the prosecution, short and possibly cherry-picked though they are, do sound like extortion. His failure to offer any alternative interpretation, either to the Illinois Senate or the media, seems damning.

Moreover, Fitzgerald has a sterling reputation. "He's absolutely the best," says Robert Luskin, a defense lawyer with Patton Boggs. Luskin faced off against Fitzgerald as counsel to former Bush administration aide Karl Rove in the Valerie Plame leak investigation.

But even the best prosecutors err or get carried away. Recall Attorney General John Ashcroft's dramatic announcement in 2002 that the government had captured "a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States." Later the government quietly dropped the claim. It finally obtained a conviction on ordinary criminal charges from a judge who handed down a pointedly short sentence after calling the government's case "light on facts."

In his closing appeal to the Illinois Senate, Blagojevich said some things that were true. "You guys are in politics," he told a roomful of politicians. "You guys know what we have to do to go out and win elections." Politicians make deals with their supporters all the time. Transactional politics is their job, and sometimes it isn't pretty, and sometimes the legal lines are hard to draw. If not scrupulous, efforts to nail criminal politicians can instead criminalize politics.

"Maybe one day it might happen to you," Blagojevich warned the state senators. He called his removal "a dangerous precedent that could have an impact on governors in Illinois and governors in other states."

He had a point. In the scramble to remove him, too many corners were cut. Not legal corners -- the law was faithfully executed -- but prudential ones. The press and the public were too quick to take a prosecutor's accusations at face value. The Illinois Legislature was too willing to act as an arm of the prosecution instead of an independent fact finder. And the political class was too cavalier about nullifying an election.

Whatever his wrongs, Blagojevich was right about this: The rules that removed him are not sufficiently distinguishable from a railroading, and they are wide open to abuse. We may find out, before long, that the door he was just shoved through swings both ways.

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"Social Studies" offers perspectives on national and international decision-making, politics and diplomacy.


JRauch@nationaljournal.com

Previously in Social Studies

  • Only Obama Can Rehabilitate Trade (01/10/2009)
  • Rescuing GM As It Tries To Rescue Itself (12/13/2008)
  • How Inflation Changed The World (11/15/2008)
  • What's A Perverse Voter To Do? (10/25/2008)
  • Can Markets Cure Malaria? (10/11/2008)

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