A Just Cause (17 page)

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n early December 2008 the newly elected Democratic senate president John Cullerton had a great deal on his mind: numerous meetings and decisions to select a staff and organize the senate. His initial task was to plan the swearing-in ceremonies. “I had to worry about everything, even ordering flowers,” he recalled. He was also attempting to focus on the immediate legislative issues that faced Illinois, mainly a capital bill to fund the state's crumbling infrastructure. He had reached out to the new Republican senate minority leader, Christine Radogno, and the two agreed that they could start with a “clean slate” and not continue the hostile relationship that had existed between Emil Jones and outgoing Republican leader Frank Watson. They felt that they could do better than their recent predecessors.
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Animosity between Jones and Watson was well known, and in the past year tension between the party leaders had gone from bad to worse. When Watson became ill and Radogno called Jones to go over the day's legislative agenda, she recalled, Jones would not speak to her.
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Party
politics in Illinois had developed a rough edge, and the earlier give and take, compromise, and camaraderie between Democrats and Republicans, when they would negotiate and come up with a compromise over coffee, a drink, or dinner, seemed lost memories of a bygone era.

Deep animosity also existed between Rod Blagojevich and Michael Madigan, often resulting in vituperative rhetoric and open hostility. Blagojevich used every opportunity to embarrass the Speaker. He openly mocked the Speaker in front of other legislators and staff, and on Democrat Day at the Illinois State Fair he bused in demonstrators to heckle Madigan. Cullerton felt that he could help “bridge the gap.” He and Blagojevich spoke infrequently, and in fact, the new senate president recalled only two conversations of substance during the governor's six-year term in office. Cullerton represented the governor's home district, he was from the neighborhood, and he had been supported by the governor's now-estranged father-in-law, Chicago alderman Dick Mell, but his political relationship with Blagojevich was strained. Cullerton, however, was optimistic that he could provide some common ground between the governor and the Speaker.
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John Cullerton's election as senate president deviated from the usual pattern of someone moving into the leadership position. He was not the leader of a minority party that had gained the majority. He did not hold a position on the leadership team of outgoing senate president Emil Jones. He did not have a new leadership team in place, and by early December he had not made two important appointments, his chief of staff and his chief legal counsel. In late November he focused on two individuals, Andy Manar, the current senate Democratic budget director, and Eric Madiar, an attorney in private practice in Springfield. Madiar had legislative experience with house Democrats and with a state agency. The arrest of Rod Blagojevich and the prospects of a senate trial presented an added challenge to Cullerton's already full agenda.

In the days after the governor's arrest Cullerton and Democratic senator Don Harmon, from Oak Park, had urged Emil Jones to form a committee to begin developing rules for conducting a senate trial. Jones would be senate president until January 14, 2009. An ally of the governor, Jones was hesitant. John Cullerton was in an awkward position; if Jones refused to form a committee, Cullerton would have to do it alone, with no official staff and no official sanction by the senate. Rules for a senate trial needed to be in place quickly. The house was moving to impeach. After some discussion, Jones relented. Senate Resolution 966 created a committee to develop trial
rules in the event that the governor was impeached. The resolution was passed by the senate the same day that the house held its first investigative hearing.
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The committee consisted of five Democrats and four Republicans, and Cullerton was named committee chairman.

Cullerton felt that when the house impeached the governor, it was important to hold a trial quickly. The thought of Blagojevich being impeached by the house and continuing to hold the position of governor while legislation was debated and passed was unacceptable. An array of negative scenarios could be contemplated. The trial had to be held immediately, as soon as the Ninety-Sixth General Assembly was sworn into office.
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Eric Madiar, a Springfield lawyer with the Chicago firm of Freeborn and Peters, had worked for the Illinois house Speaker from 2000 to 2003. He then worked as an attorney for the Illinois Commerce Commission before entering private practice. Madiar was a meticulous, detailed attorney, familiar with administrative law but also politically astute. He had watched the leadership change in the Illinois senate and felt that it was a good time to return to government. A few days before Blagojevich's arrest, he began to talk with Cullerton about the position of chief legal counsel. He presented the incoming senate president with research concerning the potential appointment of Roland Burris to fill the vacant US Senate seat of president-elect Barack Obama. Blagojevich's appointment of Burris had been rumored ever since Obama's election, and many Illinois Democrats felt that the appointment “would be a blemish” on the party and the state.
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Madiar and Cullerton met again a few days after the governor's arrest to discuss how the senate would conduct an impeachment trial. Impeachment of the governor was by this time imminent. The structure of Illinois' government and its Constitution had changed since the 1833 impeachment trial of Supreme Court justice Theophilus Smith. A format and procedures for a trial were undefined. A careful lawyer, Madiar was conscious of the vagueness of the Illinois Constitution concerning impeachment, but he was also conscious of the law and potential political fallout. Impeachment is a rarity in the United States, and the procedures for state impeachment vary based on the requirements of individual state constitutions. Illinois' Constitution treats impeachment as a political action, but the subsequent senate trial, Madiar believed, had to be conducted in a judicial fashion. Madiar looked to the US Senate trial of President Clinton and the 1988 Arizona senate trial of Governor Evan Mecham as examples. He even reviewed the procedure and rules used during the 1833 trial of Judge Smith.
He reasoned that even though the Smith trial had taken place long ago, the case might provide some precedent. Madiar worked on the trial rules but had not yet been appointed to the senate staff. While in Chicago over the Christmas break, as he was buying a gift for his son, he received a call officially informing him that he would be hired as chief legal counsel. He immediately began working with the special committee.

The full rules committee met a few times over the Christmas holidays in Chicago. The committee gained some direction from the Mecham example and even the much outdated Smith proceedings, both cases that involved criminal charges. But mainly the committee relied on the procedures of the Clinton trial, modified and shaped by its own deliberations. The rules governing the senate trial were the senate's prerogative, with no constitutional provision establishing what the rules should include. The house staff and counsel provided input and negotiated some of the rules. The house leadership was adamant that the formal rules of evidence, used in Illinois and federal courts, would not be used in the trial before the senate, which was not a court of law. Conversely, the senate committee insisted that no member of the house serve as house prosecutor. A house member had served as house prosecutor during the Smith trial, but Cullerton wanted to maintain the senate's independence from the house. By the senate trial rules, the counsel to the house investigative committee would be named house prosecutor. By early January, after many drafts, the final version was complete.

On January 14 the Ninety-Fifth General Assembly adjourned and the Ninety-Sixth was sworn in. The swearing in of a new legislature is ordinarily a festive time in Illinois' capital city. Legislators' desks are piled high with flowers, friends watch from the galleries, and families accompany members to the chamber floor, where they take the oath of office. Hotel rooms are at a premium, restaurants are booked, and parties and receptions are held to celebrate the election winners and the beginning of a new term. Party politics are put aside, animosities are tempered, and governance, for just this one day, is in abeyance.

But celebration was not on the minds of the house and senate leaders. The first day of the Ninety-Sixth General Assembly was different. The governor's arrest, the national media attention of the preceding five weeks, the investigative hearings, the pending senate trial, and the imminent removal of the governor collectively served as the proverbial elephant in the room. Merriment was tempered; house and senate leaders had much on their minds. Madigan and his legal staff discussed the validity of the senate of the
Ninety-Sixth General Assembly acting on the resolution impeaching Blagojevich, which had been passed in the previous general assembly. They decided to pass another impeachment resolution as soon as the Ninety-Sixth General Assembly was sworn in and send the resolution immediately to the senate.

The momentous day created logistics considerations. Because of the crowds, the ceremony of swearing in the house had been moved several years before from the house chamber to the nearby auditorium of the University of Illinois' Springfield campus. The house prosecutor would have to travel from the university campus to the capitol to exhibit the article of impeachment. In the senate contingency planning was taken to an extreme level. Blagojevich's circumstances and personality led senate leaders to contemplate bizarre potential scenarios and try to “outthink crazy.” They had to be ready for anything. The governor, by the Constitution, was responsible for presiding over the swearing in the new senate. What if he refused? Madiar asked. What if Blagojevich just announced that a quorum was not present and gaveled the senate to a close? What if he simply did not show up? There would be no senate to hold a trial.
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Four Illinois Supreme Court justices would be there, however, and Madiar argued that
Robert's Rules of Order
seemed to sanction one of the justices presenting the oath.

The house decided to reconstitute the special investigative committee in case further committee action was required. HR 4, which reauthorized the investigative committee, passed unanimously as soon as the house was sworn in and organized. The impeachment resolution became HR 5, an exact copy of the previously passed HR 1671.
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With the Speaker presiding, the festivities of inauguration day were suspended, and Barbara Currie introduced and explained the resolution to the new house. Jim Durkin spoke for the Republicans and addressed the process of the investigation. He emphasized the fairness of the committee rules and the seriousness of the charges. Only Currie, for the Democrats, and Durkin, for the Republicans, spoke. HR 5 was passed with 117 voting yes and 1 voting no. Deborah Mell, the daughter of Alderman Dick Mell and the sister of Patti Blagojevich, had been elected to the Illinois house in November. It was the first time she had been present for the vote on impeachment, and she voted no. Afterward, to protect her from the swarm of media, she was escorted out of the auditorium. The senate was informed that the resolution had passed and that the house prosecutor was on his way to the capitol.

Meanwhile, Blagojevich did attend the senate inauguration. It was awkward for the governor, the senators, and everyone else in attendance.
Few were smiling. The governor attempted some levity. Blagojevich and some staff were waiting in the anteroom behind the senate dais for the swearing-in ceremony to begin. Madiar recalled Blagojevich quipping to his staff, “When they came to arrest me, I should have jumped out of the window and ran to Cullerton's house. Then they would have had to arrest me at Cullerton's house.” The staff laughed. Madiar did not think it was funny.
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The governor walked to the senate podium and presided as appellate court judge Mary Jane Theis administered the oath of office to the senators, and then presided over the vote that elected Cullerton president of the senate. He then invited Cullerton to come to the podium to take charge of the senate. There was a pause and another awkward moment. Blagojevich, the consummate politician, had to speak. But his remarks were political bunkum, empty words to fill an empty moment: “We live in challenging times,” he said, hoping “we can find our way, as we deal with other issues, to find the truth and sort things out, to put the business of the people first.” He followed the veiled plea with two safe topics that were not in the least controversial and would gain approval, reminding everyone that they would soon celebrate the bicentennial of Abraham Lincoln's birth and mentioning the upcoming presidential inauguration of Illinois' Barack Obama.
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Cullerton then made his way to the rostrum. After a quiet exchange of pleasantries, the governor left the senate.

Cullerton made a few obligatory remarks, recognizing dignitaries in the audience, then focused on the economic challenges that Illinois faced. Perhaps in a veiled reference to the pending removal of the governor, he said, “Things today are not going well,” and “Times are not so good.”
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In deference to the governor, he consciously made no direct reference to the imminent senate trial. After the Republicans elected Christine Radogno as minority leader, and the leadership teams of both parties were announced, the senate finished its organizational business. The senate stood at ease while the guests left the senate floor. After a short period the senate began the serious work of conducting a senate trial. The senators moved to adopt the trial rules developed by the special committee in the form of a senate resolution that was sponsored by Cullerton. To present the resolution, Cullerton resumed his seat in the senate, and Senator James DeLeo, a veteran legislator from Chicago's Northwest Side who was appointed to Cullerton's leadership team, assumed the chair. Cullerton presented the trial rules as Senate Resolution (SR) 6. After a short explanation and no debate, SR 6 was approved by a unanimous vote of 58 to 0.
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The senate then took up SR 7, the schedule for the impeachment trial, and again adopted the resolution with no debate and by a unanimous vote. The senate was united and prepared to proceed.