A Just Cause (18 page)

Meanwhile, the house was meeting across town, at the University of Illinois, and coordination was problematic. Andy Manar and Eric Madiar were in touch with Ellis and members of the Democratic staff to keep Cullerton informed. The senate paused, waiting for word from the house that the impeachment resolution had passed and that Ellis was on his way to exhibit the resolution to the senate. DeLeo returned to his seat and Cullerton assumed the chair. After an awkward several minutes, a commotion was heard at the rear of the senate, and Cullerton called the senate to order. People ended their muffled conversations, and the senate chamber went silent. Cullerton appointed six senators, three Democrats and three Republicans, to accompany the house prosecutor into the senate chamber. The large mahogany senate doors opened, and the house prosecutor, David Ellis, and his senate escort walked in a solemn procession down the red carpet of the chamber's center aisle, hesitant, eyes downward, shuffling silently, like dour monks escorting the bishop to an excommunication. They were followed by an entourage of attendants pushing carts heavy with boxes of evidence. Several senators stood and looked at the scene in silent fascination. The audience appreciated the grave reality of the situation. Just moments earlier they had witnessed the inauguration of a new senate, and with the new organization came a new beginning. But the celebratory mood had abruptly transformed into the somber ritual of removing a sitting governor from office.

Like many others, Pamela Althoff, the Republican senator from McHenry, described the scene as surreal and said her feelings were mixed. She shared the excitement, the adrenaline rush, of being part of history being made but also the terribly low feeling of sadness that Illinois had come to this point. She told of another feeling that was difficult to describe: having “no emotion,” almost as if she were “an observer in a different dimension.”
¹³

As the muffled scene played out, Ellis informed the senate that the Speaker had directed the house prosecutor “to exhibit the Article of Impeachment which had been preferred by the House of Representatives against Rod R. Blagojevich.”
¹⁴
Ellis's utterances were strange words never heard before in the Illinois senate. This was not the familiar syntax of political debate, but an odd terminology that contributed to the dreamlike nature of the moment. Ellis read the impeachment article, requested that
the senate “take over for a trial,” and asked to withdraw. The entire episode took less than five minutes. Then Ellis was escorted out, and Cullerton appointed a new committee to escort Illinois Supreme Court chief justice Thomas Fitzgerald into the senate chamber. Cullerton administered the oath to preside over the senate trial to Fitzgerald, who in turn instructed the senate secretary, Deb Shipley, to read the oath necessary for the senate to serve as an impeachment tribunal. Afterward, each senator's name was called and each responded in the affirmative. Procedurally, the senate had “resolved” itself into an impeachment tribunal and adopted the trial rules and schedule. After some minor procedures, the senate quickly arose from sitting as an impeachment tribunal and adjourned.

The First Day

Hours before the trial began, lead prosecutor David Ellis and the prosecuting team received some reassuring news. The house assistant prosecutor, Michael Kasper, called Ellis from Chicago and said, “You won't believe what I'm holding.”
¹
The prosecution had been asking for access to the FBI recordings since the investigative committee was formed, but the US attorney, Patrick Fitzgerald, was reluctant. He did not want to divulge any information that would jeopardize the federal government's upcoming criminal case. Just before the trial, Fitzgerald compromised and agreed to release four limited segments of the tapes. Ellis was elated. The small segments gave him what he needed—the governor's actual voice, incriminating himself.

In addition, Daniel Cain, the FBI special agent who had signed the affidavit attesting to the accuracy of the recordings, was given permission to provide restricted testimony. With Special Agent Cain, Ellis had
a real person before the senate who could address the criminal affidavit. He would not need the testimony from the house members he had earlier identified as potential witnesses. His trial strategy now was established: he would develop cause by presenting the criminal arguments contained in the affidavit used to arrest the governor, aided by the governor's own words and with Cain's testimony to validate the recordings; introducing the sworn testimonies of the convicted Blagojevich fund-raisers Ali Ata and Joe Cari to establish the governor's involvement in pay-to-play activity; and establishing maladministration and malfeasance using the ongoing JCAR case and the audits concerning the flu vaccines and I-SaveRx program.

At exactly 12:01
P
.
M
. on January 26, 2009, the senate was called to order. On normal session days, senators slowly amble into the chamber, and after the customary prayer and Pledge of Allegiance, those present press their desk buttons to record their attendance and press the buttons of their colleagues who have not yet arrived on the senate floor. As the schedule for the day's business is decided, one can hear muffled floor discussions and people talking on phones, while staffers move up and down the aisles. This day was different. Every senator was at his or her desk, and a limited staff was instructed to remain at the rear of the chamber. The room was silent, and the face of each senator illustrated the solemnity of the task at hand. For only the second time since statehood, the Illinois senate was about to convene a trial to remove a state officer. The silent audience members in the galleries were merely spectators watching the drama playing out before them, but they were fully engaged and aware of the momentousness of the occasion. Before them Illinois history was being created, not with loud alarms, trumpets blaring, and passionate speeches, but with the solemn dignity, formality, and precision of a courtroom.

Access to the senate galleries was restricted, partly because of the many house members and state officers who wished to witness the historic event, partly because of public demand, and partly for security reasons. Attendance at the trial was subject to approval by the senate president's office. Andy Manar, chief of staff for the senate Democrats, arranged to have letters of admittance and plastic gallery passes prepared.
²
Gallery passes were strictly controlled. Senate staff members set up tables outside the entrance to the president's gallery, on the fourth floor behind the senate rostrum, and the gallery at the rear of the senate to distribute credentials. Guests turned in their credentials to staff posted outside the galleries when they left and retrieved them when they returned.

In what would be the procedure for the next four days, the Illinois senate was convened as a regular session, the chief justice was escorted into the senate chamber, and the senate then resolved itself into an impeachment tribunal. The first business on the first day was to administer the oath necessary to serve on the tribunal to Senator Frank Watson, who had been absent from the January 14 inauguration, when the other fifty-eight senators took the oath.

John Cullerton and Eric Madiar understood the importance of following senate protocol and adhering to the trial rules. They were aware that the governor might challenge the trial proceedings and were careful to offer the governor the opportunity to participate. Following the precise script prepared by Madiar, the senate tribunal established that on January 14, in conjunction with the trial rules, Blagojevich had been served with a summons, through his deputy general counsel, instructing the governor to file an appearance and answer the charges contained in the article of impeachment. The trial schedule required that the governor reply by January 17; failure to reply would constitute a plea of not guilty. Blagojevich did not reply. Also, for the record, it was noted that neither the governor nor his counsel filed any motions to dismiss or challenge the article of impeachment.

The secretary of the senate, Deb Shipley, read into the record that the house prosecutor had requested that four individuals who had appeared before the house investigative committee be called as trial witnesses: University of Illinois professor Andrew Morriss, Auditor General Bill Holland, JCAR director Vicki Thomas, and John Scully, who had provided testimony on wiretapping during the house impeachment investigation. In addition, Ellis had requested that eight house members be called as witnesses, chosen carefully to show wide geographic and ethnic inclusion in the removal effort. From the Republican investigative committee, he chose Chapin Rose, from downstate Mahomet; and Jim Durkin, the party's spokesman on the committee. From the Democratic investigative committee, he chose Representative Constance “Connie” Howard, an African American from Chicago; David Miller, from suburban Cook County; Jack Franks, from upstate Marengo; Lou Lang, from suburban Skokie; and alternate committee member Susana Mendoza, from Chicago. Ellis also requested that Representative Gary Hannig, a Democrat from downstate Litchfield, be called as a witness. Ellis was unsure what role these witnesses would play, but it seemed necessary to have the charges that had been developed by the investigative committee expressed by “real people,” rather than present only an abstract concept of the committee's findings.
³

After establishing the pretrial activity in the trial record, Chief Justice Thomas Fitzgerald instructed a group of senators to escort the house prosecutor and the governor into the senate chamber. The governor was not present, and Fitzgerald noted for the record that “the Governor has chosen not to appear either in person or by Counsel” (15).
⁴
The governor's strategy was becoming clear. Genson had left the case, and Blagojevich had decided to plead his case not before the Illinois senate, but to the American public. Blagojevich ignored the senate's activities, perhaps anticipating the outcome. Instead, in a series of public appearances and statements, he attempted to develop the persona of a national celebrity in the style of Robert Blake and O. J. Simpson, both of whom were acquitted in murder trials.
⁵
As late as Saturday, two days before the trial began, he appeared on
The Don Wade and Roma Show
on Chicago radio station WLS. Possibly anticipating his upcoming criminal trial, he focused on how unfair it was to remove him, saying that if he were given the chance to bring in witnesses, they would show that he was innocent. He admitted that it was his voice on the FBI tapes and apologized for the use of profanity, but he stayed on message, ignoring the criminal aspects of the recordings. He employed the same political rhetoric that had served him for the past six years, portraying himself as fighting for the people, trying to do good things, and being the victim of evil elements in state government, led by Michael Madigan and John Cullerton.

Now, Ellis was recognized to explain the prosecution's motions for changes in the original witnesses identified and evidence submitted. With newly acquired access to segments of the FBI audio recording evidence, along with permission from the US attorney to call Special Agent Cain as a witness, Ellis had his “real person” and informed the senate that house witnesses Durkin, Mendoza, Hannig, Miller, and Franks would not be called. He was still planning to call Chapin Rose, a former county prosecutor, to review the testimony of Ali Ata and Joe Cari related to their pay-to-play and extortion pleas; Lou Lang, a member of the JCAR committee, to testify to the governor's “refusal to provide any information related to the FamilyCare program”; and Connie Howard, to speak about the adverse effects on the state as a result of the governor's previous actions and arrest (28).

Ellis explained that on January 22 Patrick Fitzgerald, the US attorney, had indicated that he would allow Cain to provide testimony before the senate, but it would be restricted. Cain would only swear that what was contained in the affidavit was true and accurate, and he could answer general
questions about his role as an FBI agent, but he could not divulge any other information. Ellis told the senate that the governor would be indicted in April and that the federal investigation was still ongoing.

The prosecutor methodically outlined the case that he would present to the senate. In addition to testimonies from Lang, Rose, and Howard, Scully would testify about the process of securing a court-authorized wiretap, Holland about the audits related to the flu vaccine procurement and the I-SaveRx program, Thomas about the governor's “defiance” of the Administrative Procedure Act (27), and Morriss about the illegality of the governor's conduct. Ellis would play four intercepted phone conversations that would provide evidence of specific acts of pay-to-play activity. To address the issue of probable cause for the wiretap authorization, Ellis would introduce an excerpt from a transcript where US district court Judge Holderman made clear that the US government followed procedures and the law. To highlight sections of the criminal complaint, the prosecution would use visual transcripts of pertinent quotes from the wiretap.

Ellis would introduce all supporting documents related to the CMS audits and asked to be allowed to introduce as evidence an amendment filed in Congress by Illinois congressmen Mark Kirk, a Republican, and William Foster, a Democrat, which called for restrictions on federal stimulus funds coming to Illinois as long as Rod Blagojevich was governor. He also asked that the January 24 recording of the radio program where the governor admitted he was speaking on the tapes be admitted as evidence. To show a motive for the governor's desire that members of the
Chicago Tribune
editorial board be fired, the prosecutor introduced several
Tribune
editorials and stories critical of Blagojevich. Concerning the governor's attempt to obtain personal gain from an appointment to Barack Obama's vacated senate seat, Ellis introduced a description of the little-known organization Change to Win, with which Blagojevich had allegedly sought a position in exchange for appointing Obama's choice.

When Ellis finished his opening remarks, the senate chamber was silent. The range and complexity of the prosecutor's evidence was difficult for many senators to grasp. The charges involved both criminal allegations, including selling positions in government and extortion, and administrative acts such as misappropriation of funds, violating state law, and constitutional violations. Cullerton and Christine Radogno asked the chief justice for a party caucus, to discuss what the house prosecutor had presented and to formulate questions. The senate recessed for one hour.

As established by the senate trial rules, the questions were written and submitted to Chief Justice Thomas Fitzgerald, who then read each question to a witness or attorney, alternating between parties. These questions were the first expression from the Illinois senate, and they were mixed. Illinois is a racially and culturally diverse state, and its senate reflects that diversity. Each senator viewed the trial and events from his or her own perspective. Some questions initially revealed support for the governor. Senator Rickey Hendon, an African American from a district on the Near West Side of Chicago who was a former alderman and a Blagojevich ally, asked, “Isn't the Kirk-Foster amendment a political amendment that further prejudices the case against the governor?” Ellis countered that although it was a political amendment, it was relevant because it was “probative” and illustrated that the governor's actions were injuring the state (40). Hendon remained skeptical. He stated that Ellis had introduced new evidence and asked if Ellis was under any obligation to present evidence that would exonerate the governor. Ellis said he would. Hendon asked if “giving health care to children is an impeachable offense.” Ellis responded that the senate would decide what an impeachable offense was (54). Hendon also questioned why all the charges were “lumped together in one article of impeachment.” He said his research could not find other impeachment cases where all the charges were contained in one article and asked why the house had “decided to go against precedent.” Ellis countered that there was precedent for charges based on a pattern of abuse of authority and said that the house had decided to present the article of impeachment based on a pattern of abuse. He recalled the impeachment of Supreme Court justice Samuel Chase (57–58).
⁶

Hendon, who was known for his flamboyant style of imagery and rhetoric, would not relent. He cited the impeachments of Andrew Johnson, Richard Nixon, and Bill Clinton and said all were examples of charges being divided among separate articles. Why had the house constructed one article of impeachment? Wasn't the house restricting the senate's right to judge the charges separately? He asked why Ellis was opposed to separating the charges. Hendon was not known for in-depth historical research, and his questions led to speculation that he had been supplied with them. Ellis replied that he did not believe that presenting the charges as one article restricted the senators. He maintained that the house had prepared the article and that he could not change a decision by the house (59–61).