A Just Cause (19 page)

Some Republican questions were veiled attempts at partisanship. But the partisanship should not be dismissed as mere tribal gamesmanship. The
Republican senators had chafed under the yoke of Emil Jones for six years. They had long complained and debated the state's fiscal policies and the way the state was being managed, but Jones only dismissed and resented them. The partisanship snipes were the outpourings of pent-up frustrations and genuine anger. The Republicans were saying to the Democratic senators, this was your party's governor, and your leadership allowed this to happen.
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Senator Kirk Dillard, a Republican from DuPage County, asked why Democratic US Senate leader Harry Reid was not subpoenaed. Reid had spoken to Blagojevich and discussed the senate vacancy, and Dillard queried, “Wouldn't the Democrat leader in the US Senate be in a premier position to know the behind-the-scenes of who would join his caucus?” Ellis responded that he had no knowledge of the content of the tapes that were not released and that the house prosecutor could not subpoena the tapes (41–42).

Republican senator Chris Lauzen, from Aurora, brought up the Z Scott report, paragraph 13 in the house impeachment article. The report addressed hiring and firing practices, but no witness was slated to address the report. Lauzen asked why. Ellis responded that the report had been a collaborative effort and the prosecution did not have a witness that had personal knowledge of the report. The house investigative committee had attempted unsuccessfully to have Z Scott testify, but Ellis felt that the report spoke for itself (46–47).

Senator William Haine, a Democrat and the former state's attorney from Alton, asked Ellis if Cain would testify as to whether exculpatory statements had been made by the governor or anyone acting for him on the tapes
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heard by the senate. A seasoned prosecutor, Haine was concerned that the case developed before the senate remain fair and impartial. Ellis responded that he would highlight such statements and that when examining Cain, he would “make it a point of drawing those out of him.” He assured Haine, “You have my commitment to that” (50).

When the questions from the senate were finished, Cullerton asked that the senate grant leave for all the motions requested by the house prosecutor to be voted on with one roll call. Rickey Hendon objected to Cullerton's request. He was opposed to the Kirk-Foster amendment, restricting federal funds coming to Illinois, being accepted as evidence. The amendment had not passed, and Hendon felt that the amendment would be injurious to the state. With Hendon's objection, leave was not granted. The senate voted separately on the motion to submit the Kirk-Foster amendment as
evidence, and it was accepted with 48 voting yes and 11 no. Through separate votes, the senate approved all the remaining motions presented by the house prosecutor. With all pretrial motions complete, the senate took a short recess and prepared for the trial.

Since the governor's arrest, the days and nights seemed to run together for David Ellis. A few days before the trial, he left his Springfield home and moved into the downtown Hilton Hotel, because his wife had developed a severe cold and feared he would be infected. Ellis could not afford to be compromised; he was working nonstop, first with the impeachment investigation in the house and now as the house prosecutor in the senate. The trial was the most important professional event the young lawyer had ever undertaken. Fortunately, he could turn to others on the prosecuting team: attorneys Heather Wier Vaught, Cindy Grant, and Michael Kasper. Vaught and Grant were members of the house Democratic staff, and Kasper was an experienced trial lawyer who was no stranger to Springfield. He was a former chief counsel to the Speaker, and most of all, he had Madigan's confidence.

When the senate was called back to order, Chief Justice Fitzgerald, without fanfare, simply recognized Ellis for an opening statement. It took a moment for the room to adjust; the trial had begun. After the obligatory statements of gratitude for letting him appear before the senate, Ellis thanked the senators for undertaking the “awesome task” of an impeachment trial. He knew, he said, that the senators did not take the duty of holding a trial lightly and recalled “the look on all the faces” surrounding him and “the utter silence in the Chamber” as he entered the senate on January 14 to exhibit the article of impeachment. The assiduous house prosecutor had crafted his opening remarks to establish a feeling of unanimity between the house and senate. The house and senate were acting together; they had the same purpose. He established unity between the legislative chambers by drawing a parallel between the serious attitude displayed by the senate and the way the house deliberated over the impeachment resolution. The house had “accumulated a great volume of evidence, heard a great deal of testimony and deliberated on it.” The result, he told the senators, was a house vote of 117 yes and 1 no, for “a single Article of Impeachment alleging a pattern of abuse of power” (68). Ellis spoke in a manner that conveyed professionalism and detachment, showing little emotion to detract from what he was saying. His tone was devoid of theatrics, his pitch was steady, and he did not stress words.

The nebulous, problematic word
cause
in the Constitution, and the varied understandings and interpretations that the word can generate, prompted Ellis to initially provide a definition of impeachment that would justify the actions taken by the house. He cautioned the senate that impeachment and removal were not criminal proceedings. “We are not here to punish Governor Blagojevich.” Rather, “the purpose of impeachment is [to] remediate . . . to protect the citizens of this state from the abuses of an elected officer.” The prosecutor announced that he would not attempt to prove that the governor had committed any particular state or federal crime. The criminal proceedings were months, perhaps years, away. Proving the criminal case would be the responsibility of the US attorney. Ellis said that the prosecution would show that “the Governor repeatedly and utterly abused the powers and privileges of his office,” a justifiable cause for removal. He would illustrate a pattern of abuse by using both things that “came to light from the ongoing federal investigation” that prompted the governor's arrest and evidence that was “entirely unrelated to that investigation” (69–70).

December 9, the day of the governor's arrest, had become an indelible event etched in the memory of every senator. The astute house prosecutor took his audience back to the moment of the arrest. Everyone in the senate chamber, listening intently, recalled vividly the shock and shame of that morning and the disgraceful scene of Illinois' governor being led away by FBI agents in handcuffs. Ellis explained why the arrest happened: the FBI had been secretly recording conversations, and those recordings, he assured the senators, will be “front and center in our case.” The recordings would contain the governor's own words and show the governor directing people. The legitimacy of the actions by the law enforcement agencies remained unquestionable, and Ellis used this sentiment to emphasize the upcoming testimony of Special Agent Daniel Cain. He told the senate that Cain would declare that everything contained in the affidavit was “true and accurate.” He would play segments of the tape recordings so that the senators could hear the governor attempting to exchange the signing of legislation for political contributions. The governor's words, he said, “may shock you. At times, they will probably disgust you” (70–71).

The prosecutor then brought up what many felt was the most egregious charge against the governor: the selling of Barack Obama's senate seat. The senate would be presented with evidence that Blagojevich plotted to obtain something of value, “like a sports agent shopping a star athlete to
the highest bidder.” Ellis discussed the governor's options at length. At first Blagojevich had high hopes, perhaps a cabinet-level position or an ambassadorship. He did not meet with success, and as his hopes were dashed, he began to explore a position with Change to Win, a union interest organization. When that option dissolved, he became frustrated and tried to obtain paid appointments on corporate boards for his wife. Finally, he was reduced to scheming for “good old-fashioned political contributions.” Ellis used a refrain that by now each senator was quite familiar with. It was the governor's creed for political operations, his words to his advisors that were heard on the FBI recordings, the standards and criteria used to benefit Blagojevich: everything had to be “legal, personal, [and] political” (72–75).

Ellis told the senate that he would demonstrate how Blagojevich abused the power of his office by attempting to trade official acts for personal or political gain. He told of the governor's attempts to coerce the Tribune Company to fire members of the editorial board, to extract more contributions from road contractors by promising larger allocations for tollway improvements, to prompt horse-racing track officials to make contributions in exchange for his signing legislation that would benefit the tracks, and perhaps most repugnant, to withhold an allocation for pediatric care from Children's Memorial Hospital unless hospital officials made a political contribution. All the charges that Ellis spoke of had been recorded and discovered during the ongoing federal investigation. “The stuff we've talked about so far, these are the issues that were caught on tape” (75–77).

The house prosecutor then seamlessly turned to the impeachment charges that were unrelated to the ongoing criminal investigation. The senators would hear of Ali Ata's sworn testimony that he had received his position as executive director of the Illinois Finance Authority in exchange for a campaign contribution. The convicted Joe Cari would “testify that the Governor flat out told him” he could obtain political contributions from those who received state contracts. Ellis told the senate that the governor not only appointed people to the Health Facilities Planning Board but also “controlled how they voted.” At the recent trial of Tony Rezko, “it was corroborated by a number of people” that Blagojevich “switched the vote of his block from no to yes on a permit application by a hospital after that hospital agreed to give the Governor a campaign contribution” (78–79). The house prosecutor's charges, with one corrupt incident after another delivered in rapid succession, had a noticeable impact on the senate. The senators sat transfixed.

But Ellis had more. He transitioned to the incidents that had received the most attention of the house investigative committee: the flu vaccine and I-SaveRx audits and JCAR. The audits would “show that the Governor liked splashy ideas, big ideas, headlines,” Ellis said, “but when it came to implementing his policies, he consistently violated state law and federal law, often jeopardizing the safety of our citizens” (80).

Finally, the house prosecutor addressed the rules governing the senate proceedings. The rules were modeled after the Clinton impeachment trial, he said, and, emphasizing the fairness of the rules, the presidential trial had resulted in an acquittal. Once again, employing the prestige of the law enforcement agencies involved in the governor's arrest, he stressed that the governor's own words would be verified by Special Agent Cain. Ellis closed by noting that there was one person who could “refute any charges that he was capable of refuting,” who had “absolute personal knowledge of all of the information contained in this complaint.” That was the governor, and the rules permitted him “to testify in his own defense.” The governor had “betrayed the public trust” and “violated his constitutional oath,” and thus “he should be removed from office” (81–82).

Immediately after Ellis's opening remarks, Chief Justice Thomas Fitzgerald spoke. Again, for the record, the chief justice intoned, “Is the Governor present? Is counsel present on behalf of the Governor?” His questions were met by silence. Fitzgerald then asked that the record reflect that the governor had “chosen not to make an opening statement” (82).

The first witness for the house prosecutors was John Scully. Scully's task was to verify the legitimacy of the wiretap, which was the foundation on which the impeachment was based. The house prosecutors made sure Scully's background in the military and with law enforcement agencies was not lost on the senators; they passed out a copy of his “curriculum vitae” (86). Michael Kasper questioned Scully about his experience, the types of recordings, and the procedures necessary to obtain court permission. Then for the record, Fitzgerald asked if the governor or his counsel wished to cross-examine the witness. Again his inquiry was met with silence. After a short recess to formulate questions, only the Republicans chose to ask anything of Scully, with a few general questions concerning the particulars of wiretaps and the procedure necessary to obtain permission. The day was over. The purpose of Scully's appearance had been to substantiate the legitimacy of the wiretap evidence, and there was no dispute from the senators.

The Second Day

Throughout the house investigative hearings, Ellis had relied on the criminal affidavit as the source of the major charges for impeachment and removal, referring to it when he opened the house hearings and as he gave his opening arguments before the senate. He had stressed the importance of the testimony of Special Agent Daniel Cain, someone who was a participant in the ongoing criminal investigation and who could attest that the contents of the affidavit were accurate. Although highly restricted by the US attorney, it would provide Ellis the opportunity to use the actual language of the affidavit, giving him the ability to paint graphic scenes that the senators could easily envision.

Ellis, the ever-meticulous attorney, was ready. The night before and early that morning he had met with the other prosecuting attorneys to go over the affidavit, and they decided which remarks, corroborated by Cain, would confirm the prosecution's claims. Before beginning the interrogation of his witness, Ellis introduced the senate to Assistant US Attorney Tom Walsh, who would sit next to Cain during his testimony. If the questions from Ellis or the senators were deemed beyond the scope of verifying the accuracy of what the affidavit contained, Walsh would instruct him not to answer.