A Just Cause (24 page)

When the senate returned from the party caucuses, Christine Radogno asked Fitzgerald if they could continue the questioning of Rose the next day. The Republicans wanted time to study the transcripts of the Rezko trial, which had been handed out at the beginning of Rose's testimony. It had been a long, arduous day. The evidence put forth in the criminal affidavit and the testimony of Ata and Cari was overwhelming. The senate members were spent. Fitzgerald granted the request, and the tribunal adjourned for the day.

The Third Day

When the senate returned the next day, the Democrats announced, not surprisingly, that they had no questions for Representative Rose. The house prosecutor had agreed with Madiar's suggestion and moved to minimize the process. One by one Ellis excused the remaining house members. The latest to be excused was Representative Constance Howard, a Democrat from Chicago's South Side. A member of the house investigative committee, Howard was slated to testify concerning the committee's perception of the “injury” to the state of Illinois as a result of the governor's actions. The prosecution suggested, taking Madiar's advice, that the investigative committee's record spoke for itself and there was no reason to have additional house members testify. Ellis, the meticulous, orderly attorney, had planned the prosecution, but judicial processes are human processes and ultimately fluid events. The prosecutors had been unsure whether the governor would participate in the trial when they initially planned their strategy. Without counterarguments from a defense, their presentation of the evidence would be the only criteria that the senators would use to make their judgment. The prosecution had presented adequate evidence—in fact, overwhelming evidence—to convict. Ellis and the prosecution team had discussed the situation. With no counterarguments, and the risk that house members could prompt unintentional counterarguments or bring further embarrassment to the Democrats, the prosecution changed its strategy and decided that after Chapin Rose, no other house members were needed.

There was a sense of resentment among the Republican members of the senate, who were not happy with Ellis's decision to move quickly through the process. They wanted to dwell on the evidence as much as possible. The Democrats had been in control for the past six years, and now the Democrats were in control of the trial proceedings. All the animosities and negative experiences of dealing with Blagojevich and Jones still haunted the Republicans. Under Emil Jones the majority Democrats had enabled the errant administrative schemes of Blagojevich many times. Jones was gone and Cullerton was now the senate president, but the Republicans felt that once again they were being dismissed and denied participation. The trial offered little opportunity to express their political frustrations and to articulate that they had warned of the impending crisis several times. The questioning of witnesses constituted the only opportunity the Republicans had to make veiled partisan barbs, and they wanted to take advantage of it. The Republicans' quest for justice was focused not on particular individuals sitting on the opposite side of the chamber, but on their own past circumstances.
²⁷

Christine Radogno, speaking for the Republicans, stated that it was important for people to see that the proceedings were not rushed and for every member of the senate to have the opportunity to have his or her questions answered. Michael Kasper responded to the Republican leader that the prosecution was “sensitive to letting the evidence speak for itself”; they were eliminating witnesses who would merely summarize the evidence and wished to question only people with firsthand knowledge of the facts. Howard, he said, was to give only her characterization and opinions of the evidence. Cullerton, attempting to finesse an answer to Radogno's question, referred to the senate trial rules and reminded the senators that they were acting as both judge and jury and that it was the house prosecutor's obligation to present the case. Radogno was not satisfied and requested a forty-five-minute caucus to “reformulate” their questions. Cullerton did not want to allow the Republicans time to strategize and reminded the justice that they had met that morning for the purpose of asking Chapin Rose questions. Fitzgerald extended the courtesy of compromise and asked Radogno if she would accept a thirty-minute caucus. She agreed and the senate stood in recess (365–76).
²⁸

During the caucus, the Republicans did not so much reformulate their questions as reinforce their objective. They discussed what they would ask and at times designated people to ask specific types of questions.
²⁹
The question period was the only chance in the trial that the Republicans would
have to comment on the last six years, and they wanted to take full advantage. When the senate reconvened, exhibiting an effort to compromise and perhaps defuse the political tension, David Ellis offered that any questions from the senators pertaining to the hearing records or the affidavit that could not be answered by a live witness could be submitted in writing to the prosecutors, who would do their best to direct the senators to the relevant passages in the record or answer the questions themselves. Radogno expressed appreciation for his offer but said the Republicans wanted to ask questions of live witnesses.

As expected, the Republicans released a torrent of disparaging inquiries directed at fellow Republican, Chapin Rose. Frank Watson started by reiterating the details of Ata's meeting with the governor's chief budget director and then Rezko later telling Ata that he would report to Rezko. Watson wanted to emphasize the names of people and asked Rose whether Ata ever mentioned the names of the special advisors to the governor. Rose could remember “Mr. Kelly and Mr. Rezko” and “they may have mentioned Mr. Jay Hoffman,” a Democratic state representative from Belleville (378). Most of the questions went beyond the Ata and Cari testimony and were asked only to emphasize the governor's misdeeds. The Republican senators posed questions concerning bond ratings and the state's financial condition under the Blagojevich administration. The financial questions were followed by inquiries into Blagojevich's security clearance, which had been revoked by the federal government, and the condition of the state if a disaster occurred. The Republicans then asked questions concerning the governor signing legislation and contracts with the state. Rose dutifully answered that the questions were beyond his scope of testimony, but on occasion he offered personal remarks. The senate Republicans asked Rose more than sixty questions, some with multiple parts. The questions, answered or not, included many veiled innuendos and overt accusations, and they were put in the record. The interrogators thus accomplished their goals (379–451). The short exchange concerning the reduction of house witnesses and the questioning of Chapin Rose were the only times during the trial that overt partisan differences surfaced.

The prosecution now moved to the charges concerning violations of the constitution and malfeasance—wrongful conduct by a public official. The administrative charges were important to the prosecution's case. The prior presentations had dealt with allegations of criminal activity, but they were merely allegations; the governor had not yet been tried in a court of law
or found guilty of any crime. Impeaching the governor for conduct that constituted malfeasance had become a viable option, however.

Three more witnesses would be called: JCAR director Vicki Thomas, University of Illinois professor Andrew Morriss, and Auditor General Bill Holland. They would testify on specific administrative and constitutional subjects and not the intimate dealings of Blagojevich or his administration. These witnesses would not offer the Republicans the opportunity to ask ranging questions.

The prosecution's first witness to address the maladministration charges was Vicki Thomas, the executive director of the Joint Committee on Administrative Rules (JCAR). Michael Kasper resumed the role of prosecutor. As rehearsed, Kasper took Thomas through an explanation of JCAR's role in the Illinois administrative system. The questions and answers did not inform the senators; they were well aware of the functions of JCAR and the controversy that had erupted over the FamilyCare expansion. Her testimony was intended to establish the legitimacy of JCAR and to show that the governor had ignored the legislature's role and authority. When testifying before the house committee, Thomas had at times moved off subject, the result of miscommunication and conflicting advice from the committee and staff. This time the witness was focused. Kasper's questions and Thomas's answers were crisp and to the point. Thomas had provided the house investigative committee with details concerning the Department of Healthcare and Family Services (HFS) attempt to change the FamilyCare program without legislative sanction or appropriation and the resulting Caro lawsuit. Her appearance before the senate was abbreviated because the controversy over HFS's actions and the resulting Caro lawsuit had been extensively covered by the Illinois press. The senate did not need an elaborate explanation; what the governor had done had been made clear. What the prosecutors needed to do was to present the topic clearly for the trial record and for public consumption.

Attempting to establish an abusive pattern of rulemaking under Blagojevich, Kasper asked, “How often does JCAR suspend or prohibit a rule?” Thomas told the senate that from its inception in 1977, after the review of more than twenty thousand rules, JCAR had suspended or prohibited rules sixty-nine times, and thirty-three of the sixty-nine cases had occurred under the Blagojevich administration. Kasper and Thomas went through the emergency rules procedures, when an emergency rule is appropriate, and the subsequent review by JCAR. They clearly established that in the
case of FamilyCare, JCAR had followed proper procedure. They established that the governor or his office instructed HFS to disregard the authority of JCAR and continued to enroll people in the FamilyCare program. Kasper asked Thomas if she believed that “by not abiding by JCAR's decision,” HFS had “violated state law,” and she answered yes (417–22). The senate recessed to allow members to develop questions for the witness.

The senate's ensuing questions were both procedural and historical. Republicans asked most of the questions, but this time Democrats also asked questions. Senator Rickey Hendon was the only dissenter to the prosecution's claims. Trying to drive a wedge between the house and the senate, a favorite past tactic of Blagojevich and Jones, and perhaps because he did not understand the functions of JCAR, Hendon asked Thomas if she was aware that in the past the house had “placed rule-making language on the vast majority of bills sent to the Senate, including senators' bills combatting autism, mortgage foreclosure and job losses? Is it the intention of JCAR to use rule-making language to handcuff legislation in the Senate?” The subject matter emphasized by Hendon echoed the familiar demagogic refrain of Blagojevich: helping the disadvantaged, the poor, the sick, and the disabled. Thomas did not take the bait. She did not address the question. Hendon's questions became bizarre: “Is it the intent of the Illinois Constitution for JCAR to be the chief executive of the State of Illinois?” And finally, “Does JCAR serve both the House and the Senate? Are you aware that several of the Governor's healthcare initiatives were passed and supported in the Senate? Is the House superior to the Senate in JCAR's mind?” It was clear that no one was supplying these questions to Hendon; he was acting on his own. Thomas answered no to the first question and reminded Senator Hendon that a bill becomes a law only after it passes both the house and senate and is signed by the governor. JCAR looked at what had been enacted and placed in the Illinois statutes (426–28). Responding to Hendon's questions, several in the senate galleries shook their heads, rolled their eyes, and smiled sardonically.

The remaining questions from the senators attempted to emphasize the rocky history of JCAR's dealing with the Blagojevich administration or sought to establish that JCAR had acted properly. There was no discussion of the pending Caro case or its unconstitutionality claim. Kasper had gotten what he wanted, a clear, factual account of what had occurred. Since there was no counter to his claim that HFS had broken the law, the witness was excused.

The chief justice immediately instructed the prosecutor to call his next witness, but David Ellis had a few procedural remarks before the trial continued. Lou Lang was the last scheduled house witness, and Ellis explained that because Thomas had covered all the testimony that the prosecution would have elicited from Lang, he would not be called. Fitzgerald told Ellis, “You may try your case as you wish” (439). Christine Radogno was recognized and, of course, objected. Once again she stated that the Republican caucus was concerned over the shortening of the witness list, emphasizing that the charges were serious and they wished to ensure that the governor received a fair trial. Radogno did not belabor her objections; she had said the same before, but she made her points for the record. Fitzgerald was correct: the prosecutor could proceed with his case as he wished.

Andrew Morriss, the University of Illinois administrative law professor, took the witness stand next, and another member of the prosecution team, Heather Wier Vaught, assumed the role of questioner. After establishing Morriss's qualifications and experience, Vaught quickly moved to the substance of his testimony. He had testified before the house investigative committee and was familiar with JCAR operations and the rule review systems in other states. He had been selected by the prosecution to validate the JCAR system of rule review and to comment on the legitimacy and necessity of checks and balances between the legislative and executive branches. Morriss called the separation of powers “the bedrock of the American system of government” and noted that “Article II, Section 1 of the Illinois Constitution provides that no branch of government may exercise the powers that belong to another branch.” Answering Vaught's questions, Morriss testified that the legislature, consisting of the “elected representatives of the people,” was responsible for policy, and policy was implemented through state agencies and departments. It was JCAR's function to ensure that policy implementation matched the intent and will of the legislature. Morriss testified that he believed that agencies and departments that ignored the decisions of JCAR were violating the law, and he knew of no past cases where the existence of JCAR was found to be unconstitutional (444–47).