A Just Cause (13 page)

The defense moved to the administrative charges presented by the committee counsel. Genson stressed that though some committee members thought the charges “so serious,” they were in fact noncriminal matters. He addressed the JCAR controversy by noting that nine other states had found that similar legislation was unconstitutional. The professors who testified did not have constitutional law expertise and were simply stating their opinions on how valuable JCAR was, he said. One professor thought
the governor's actions were impeachable but could not say why. Another said it was for fraud but could not say what fraud it was. Referring to the Caro case, Genson said that Scott McKibbin (actually Ron Gidwitz; Genson misspoke here) and Greg Baise, parties to the litigation, “were not exactly bleeding hearts, but they were indignant that they might have to pay some more tax dollars because of this program. Indignant. Strutted in, said we should impeach, and strutted out” (772–74).

Attempting to establish legal credibility to his claim that the JCAR incident was not cause for impeachment, Genson turned the committee's attention to the two-page report submitted by Ann Lousin (misspelled as Lucine in the impeachment transcript). Genson noted that she was a professor of law at the John Marshall Law School, a research assistant at the 1970 Constitutional Convention, a staff assistant to the state house Speaker and a house parliamentarian in the 1970s, and a staff member of the house Constitutional Implementation Committee. The defense counsel declared that Lousin, the only constitutional law expert to submit comments to the committee, had said that the governor should not be impeached based on the JCAR incident.

Next, Genson characterized the decision to purchase the flu vaccine as an error in judgment and pointed out that no money had been paid. In an attempt to obfuscate the actions of the governor's staff, he said, “Nobody paid money not knowing that the drugs would not be allowed to come into the United States.” Although it was bad judgment, a mistake, it certainly was not impeachable. Attempting to distance Blagojevich from the actions of his agencies and decisions by his directors, Genson noted that “nobody talks about the governor” (780–81).

Genson again asked the committee to follow the law and use the same standard for impeachment that the Heiple committee had used. He again stated that he was “fighting shadows,” fighting people who had been convicted, and fighting preliminary hearings that had yet to take place. There had never been a legislator removed from office while an indictment was pending. Genson said he understood Currie's deference to the US attorney and her desire not to interfere with the investigation, but referring to Fitzgerald's disallowing of defense witnesses, he said it was not fair to write up a complaint and then refuse to talk about it. “It's just not fair,” he emphasized (788–89).

The rumpled Genson shifted the papers and notes before him. Restricted by the committee rules, he had said all that he could. Now he summarized: The committee and Patrick Fitzgerald would not allow him to subpoena
witnesses who could refute the criminal complaint used to arrest the governor. The wiretaps that were used to produce the affidavit were illegal—neither he nor the committee could examine them, and the people speaking on the recordings had not been identified. The committee should be conducted with due process, under established rules of evidence, and require a burden of proof that established clear and convincing evidence. It should follow the standards and procedures set in the Heiple hearings and apply the same to Rod Blagojevich. All the people mentioned in the criminal complaint lacked credibility, as they were convicted felons who were attempting to have their sentences reduced by cooperating with the federal government. JCAR was before the courts, and a recognized legal scholar had reported that the committee should not act before the courts decided the case. The JCAR controversy was not an impeachable offense, the flu vaccine incident was just an error in judgment, and there was no proof of the allegations of procurement or campaign finance wrongdoing.

The sagacious defense attorney paused and searched for more to say. The interruption caused many in the audience to turn their attention toward Genson, and the room became quiet. Sitting in his motorized chair, surrounded by notes and stacks of paper, Genson knew the outcome. He knew that no matter what he said, the committee was going to send an impeachment resolution to the full house.
²⁹
He concluded, simply, with one final plea: “I'd ask all of you not to impeach in this case” (790).

Currie thanked Genson and said she wished to make “just a couple of points.” Her statement portended the committee's response. They would challenge the defense's contentions. In regard to Genson's reference to shadows, Currie said that the governor had been invited to appear before the committee and could have identified who was speaking on the recordings. Concerning JCAR, the governor could have gone to court if he thought it “invades the integrity and the prerogative of the chief executive” (790–91). However, the governor had signed legislation increasing JCAR's authority in relation to his own, and Currie reiterated that JCAR was constitutional unless the courts ruled otherwise (790–92).

After a brief exchange with Genson about these points, Currie recognized Jim Durkin, the Republican spokesman on the investigative committee, who offered some remarks in rebuttal. Durkin was influenced by his time in the narcotics trial unit, when, as a young attorney, he honed the instincts of a trial lawyer. “I was a young and inexperienced lawyer and up against the best defense attorneys in Chicago—you learn,” he recalled. Now,
once again, he was facing the best.
³⁰
Durkin wanted to clarify that whatever the committee decided, it would not remove the governor from office. The committee was similar to a grand jury, and should it decide to recommend impeachment, an impeachment resolution would be decided by the full house. He also wanted to make it clear that what Genson had experienced before the committee was “more than due process.” The committee had allowed the defense attorney to participate in the committee process and had allowed him to call witnesses. He stressed to Genson that he could have called his client, the governor, as well (797). He reiterated, “We've extended an invitation to your client to come before this committee,” and since it was “not a criminal proceeding,” the committee had the “right to draw a negative inference from his not . . . participating.” Addressing the wiretaps used in the affidavit, Durkin said, the US Attorney's Office was acting within its proper authority to obtain the information. The use of wiretaps was within the legal boundaries established by the US Supreme Court. He stated emphatically that the committee was not “bound by anything that was done in Heiple.” He repeated that the committee was like a grand jury and could use hearsay. If the committee and the full house decided that impeachment was warranted, then the senate would hold a trial (800–803).

Genson, not surprisingly, disagreed. The committee was not a grand jury, and its procedure should be guided by the Heiple proceedings and require clear and convincing evidence. And he added that it was his hope that the committee would consider the governor's constitutional right not to testify.

Currie next acknowledged Lou Lang. Like Durkin, Lang expressed that he wished to comment on Genson's remarks rather than ask questions. Lang knew what had to be accomplished. His remarks were for the record, as well as for public consumption, and were a direct rebuttal of the statements offered by the defense. He needed to challenge and disparage Genson's remarks, point by point, and legitimize the committee's case for impeachment. Lang noted that Genson's defense primarily addressed the charges contained in the criminal complaint. “He's a criminal attorney,” Lang later explained.
³¹
But Lang wanted to focus on the administrative indiscretions presented to the committee in the prior two weeks. They were supported by clear evidence, and in Lang's view, they constituted violations of the constitution.

Genson had spoken of the importance of the separation of powers, and Lang found that “a curious argument.” He asked, “Isn't that what this hearing is all about?” He reminded Genson that Blagojevich's attempt to expand
the FamilyCare program without legislative authorization was a violation of the constitution.
³²
The governor's disregard of the auditor general, the handling of the FOIA requests, and the flu vaccine and the controversies associated with the Procurement Policy Board all indicated, Lang posited, that he did not respect the independence of other branches of government and the law. In an attempt to establish that the administrative incidences constituted impeachable offenses, Lang attacked Genson's argument that the allegations needed to rise to the level of a criminal allegation. “A noncriminal violation of the Constitution is still a violation of the Governor's constitutional oath,” he declared. “And therefore,” he said, justifying the apparent consensus of the committee, “if this committee finds that the Governor has violated his constitutional oath for whatever reason, that would be cause or grounds for possible impeachment” (810–12).

He also disagreed with Genson's contention that the governor had been denied due process and wished that the governor would come in and testify. He defended the use of the wiretaps, stating that they provided evidence “as to the state of mind of the Governor” (807). Lang admonished Genson and claimed he had insulted the committee members by speaking publicly of their “railroading” the governor and characterizing the process as “a witch hunt.” The Heiple investigation had no bearing and did not set any precedent for the investigative committee. Clear and convincing evidence was not a standard the committee was bound by. Regarding Genson's claim that “we need to have probable cause, no, that's not the standard,” he said. The Illinois Constitution contains “a simple word, cause. Not probable cause, not clear and convincing evidence, cause” (808–9).

In vociferous tones, interspersing criminal charges, constitutional violations, and administrative discretions, Lang went through the allegations that had been presented to the committee in the preceding two weeks. Genson had called the discussions on the government recordings “merely talk,” but Lang challenged the defense attorney to deny that it was the governor speaking and reminded him that it was a crime to perform a public act for personal gain. The committee was deciding not on the incompetence of the governor but on violations of the constitution and possible wrongful acts. “But this committee is honor-bound and duty-bound and constitutionally bound to put politics aside, to put our petty grievances with the Governor aside, to put our concern about whether he's a competent manager of state government aside, and just deal with the issues that are before this committee,” he declared (813–16).

The governor's defense asked to respond. With some annoyance, Currie instructed Genson not to repeat his previous remarks. He answered that his comments would be “brand new” and quipped that “Mr. Lang is very inventive.” He maintained that his statements calling the investigative hearings a “circus” were directed at the newspaper coverage and editorials and that the term “witch hunt” was “apropos.” Genson referred to Lang's interpretation of what cause was and was not and his statements that the Heiple investigation had no bearing on the Blagojevich investigation “Lang's rules of order.” Genson would not put his client before the committee until he understood what the charges were. He again mentioned that the courts had not ruled that the governor did anything inappropriate in his dealings with JCAR. Concerning the taped conversations, he asserted that the governor “has made no offer to anyone according to that tape.” Regarding the auditor general's audits and the PPB, Genson pointed out that no one had ever spoken directly to the governor (817–19).

Genson's remarks were brief. They were followed by statements and questions from the committee that ranged across the charges and defense arguments. The committee's questions were relentless. Genson attempted to parry the onslaught: the tapes were illegal, misconduct must rise to the level of criminal conduct, JCAR was still before the courts, the tapes relate just jabber, the governor had not offered anything to anybody, and the committee should look to the Heiple case for guidance. His arguments were in vain. It was clear: Rod Blagojevich had no supporters on the committee.

Lang again asked to be recognized. During the committee's questioning the legal staff had time to discuss and respond to Genson's retort to Lang's rebuttal. Interjecting some comic relief in what had been a serious day, Genson quipped; “Didn't you have your turn already?” Lang smiled and rejoined sarcastically, “Sorry, Mr. Genson.” Again the attorneys sparred. Lang wanted to state again—for the record—that the Illinois Constitution “refers to cause and only cause. It doesn't say clear and convincing, it doesn't say probable cause, it just says cause.” Further, speaking of the precedent of the Heiple case, there was no prohibition against a legislature changing its mind. Concerning Genson's claim that the tapes were illegal and should not be considered by the committee, and the defense attorney's claim that “nothing wrong” was discussed on the tapes, Lang asked, “If the tapes display that your client has done nothing wrong, what's the big deal, sir?” Genson responded forcefully, “The big deal is that there are laws and
the laws have to be followed.” It was “incumbent upon” him, he stated, to remind the committee that it was “considering tapes illegally” (860–61).

Lang then asked that a series of newspaper articles criticizing the governor's actions in the JCAR incident be entered into the committee record, and Genson quickly responded that the committee should not make a decision regarding impeachment based on polls or editorials and questioned the impartiality of the committee. Verbally battered and frustrated, Genson asked rhetorically; “Is anyone here going to stick up for the Governor . . . ? I mean this is the impartial panel that we all swore to . . . ,” his voice trailing off. Currie quickly responded that the committee would be happy for the governor to come before them and “stand up for himself” (865). The day for the defense was over.