A Just Cause (26 page)

The senators were familiar with the audits, and they knew the administrative and governance implications. The audits were damning reports on the conduct and administrative abilities of Blagojevich and those around him. The CMS audit raised serious questions of wrongdoing, providing evidence of not just incompetent administration, but possible malfeasance and criminal activity. The audits had been turned over to Attorney General Lisa Madigan and provided to the general assembly (511). No investigative action had been taken by the attorney general. Jack Franks's government administration committee, with the Speaker's nod, continued to hold hearings after the audits were published. The senate Republicans responded by producing an informational handout titled “CMS Contract Abuses,” which summarized the findings contained in the audit, and an editorial board briefing report, “Reforms for Sunshine and Accountability,” which explained contract reform legislation offered by Republican senators. From 2005 through 2008, Christine Radogno and fellow Republicans introduced several bills that focused on contract reform, but Emil Jones controlled the progress of bills. The bills were assigned to the Senate Rules Committee, they were never considered, and they died when the general assemblies adjourned
sine die
. The response of the house Republicans was restrained. They issued a press release in May 2005 calling for an investigative task force to examine the CMS bidding process and for the attorney general to determine whether criminal statutes had been violated. The house Republican staff issued statements confirming the findings of Franks's State Government Administration Committee for the CMS audits for 2004 and 2005 but did not introduce any reform initiatives.

For state entities, the legislature, or law enforcement agencies to investigate the governor beyond the audits remained problematic, both politically and demonstratively. Theoretically, the branches of government are assumed to work in conjunction for the common good. Any effort to openly review the governor's conduct concerning matters that could lead to criminal investigations would have meant political civil war. Any investigation by the legislature likely could not have progressed far with Emil Jones in control of the senate. An additional consideration, much on the mind of the Speaker and his staff, was that the governor was a master of public relations and political gamesmanship. He was at his best when giving a performance. It was speculated that Blagojevich would have answered any investigation with the charge that it was politically motivated, and indeed, this would have appeared to be the case if an investigation had been conducted by the office of Attorney General Lisa Madigan, who is the Speaker's daughter and was often discussed as a possible candidate for governor.

After the senate finished its questioning, Fitzgerald asked Kasper if he had any redirect questions of the witness. Kasper answered he did not. The chief justice then asked if there were any questions for the house prosecutor regarding other evidence that had been placed in the record. There were none. The house prosecutor and the senate members had nothing more to say. The prosecution had presented the justification for removal, and it was understood by the senators. Ellis rested his case. Fitzgerald noted again for the record that the governor and his counsel were not present and no defense could be made. He adjourned the senate until the next day to hear closing arguments.

But the day did not end. Immediately after the senate adjourned, a meeting was held in John Cullerton's office to discuss how and under what conditions the governor would be allowed to address the senate. Cullerton, Madiar, and Manar were joined by Senators Don Harmon and James DeLeo, along with Clayton Harris and Andrew Stolfi, attorneys on the governor's staff. Cullerton asked Madiar, “Just how they are going to do this?”
³⁴
Allowing Blagojevich to appear before the senate, under the terms that his lawyer requested, took some mental gymnastics. Blagojevich had elected not to participate in the trial, and with the exception of closing arguments the next day, the trial was virtually complete. Chief Justice Fitzgerald had dutifully asked if the governor or his counsel was present at every segment of the proceedings where the defense could participate. SR 7, the senate trial rules, set a specific deadline for the governor to file an appearance notice,
and he had failed to respond. Because his appearance would be inconsistent with the legal protocol that the trial rules established, Madiar decided that the governor could file a formal request for the senate to grant leave for him to appear, and the senate would vote on whether to grant leave.

After the discussions, Madiar sent an e-mail to Stolfi providing the formal request forms and explaining the procedures that would be followed to accommodate an appearance by the governor. He then developed a script for Chief Justice Fitzgerald to follow and e-mailed it to the Supreme Court. Harris and Stolfi went to the governor's mansion and began to write Blagojevich's speech for the next day. They had trouble getting through to the governor. When Harris called the governor's home, Patti Blagojevich told him that her husband was eating and said to call back in an hour. Even at this late stage, Harris felt that if there was any way Blagojevich could avoid removal, “he had to make a statement.” When he finally did talk to the governor, he found Blagojevich uninterested in working on a speech. The governor told Harris that he was going to bed and everything would be okay. After the call, Harris and Stolfi looked at each other in amazement. “He was going to be removed from office the next day, and he was going to bed.”
³⁵

O
n session days, when the legislature meets to consider bills, the Illinois state capitol typically takes on the air of a medieval market. It is a scene of managed chaos. Legislators and lobbyists scramble from one committee meeting to another, as crowds gather outside the doors of the senate and house chambers and hand notes or business cards to the elderly doormen to give to legislators, requesting that they come out for short meetings. Party caucuses are called, staffers rush to prepare final documents or briefings, and throngs of people descend on the legislative offices with a sense of importance and urgency, wishing to present their views regarding the thousands of bills introduced each session. As bells ring and votes are taken, the hawking, brokering, and haggling of the public policy market can be heard in the hundreds of conversations that take place where they can—in hallways, corners, or spaces temporarily claimed along the brass rail that encircles the capitol's third-floor rotunda. Policy discussions are frequently interrupted by the din of demonstrations, the
chatter from visitors at informational exhibits, or the drums and horns of high school bands that blast a cacophony of unrecognizable noises from the first floor.

In contrast, on January 29, 2009, the last day of the Blagojevich trial, the capitol was quiet. People spoke in soft tones. The usual crowd of lobbyists, petitioning interest groups, and concerned citizens was absent, replaced by the pervasive presence of the media. Everyone present that day anticipated the inevitable, knowing that this would be the last day of the trial, but few talked about it. The trial prosecutors claimed that they did not know what the outcome would be, perhaps to maintain an illusion of proper protocol, but the senators and everyone else sensed the inevitable outcome. Seven weeks and three days after the arrest of Rod Blagojevich, the political drama that was gripping Illinois would end and the governor would be removed from office.

The day began relatively calmly. Arriving at their offices, many senators asked their legislative assistants to postpone any meetings; they did not want visitors. Some talked among themselves; others wanted to be alone to contemplate the day ahead. The thoughts of Republican senator Dale Righter, from Mattoon, were characteristic of the mood of the senate. While exercising at a local gym the previous evening, he had begun to think about the next day. The tall, thin, and fit practicing attorney returned to his room and started to set down his thoughts, writing the notes he would use during the final senate deliberations. Over the preceding days he had heard the evidence, and now his decision was clear. “These are
not
the words and deeds of a governor who cares or even comprehends the ideal that public office is a public trust. But these are the words spoken when he thought only his trusted co-conspirators were listening,” he wrote. “Not the story of a governor who truly meant what he said about changing the way we do business or ridding state government of corruption—but rather one of an official who began, even before his election, arranging with the likes of Tony Rezko and Ali Ata to build a campaign fund through manipulation of public resources.”
¹

The questions that preoccupied many that day revolved around whether the governor would appear as he had requested the day before. Many in the senate had worked with Blagojevich over the past six years. Some had been allies who now would vote to remove him, and others had political and personal conflicts, but both allies and enemies wondered and worried about what the governor would say. Would he level allegations against
individuals? Would he call out his past friends? A handful of senators were not convinced that removal was justified but were aware of the overwhelming support for removal in the senate, in the media, and among the public. Conscious of the political consequences if they voted not to remove Blagojevich, they struggled with their decision.

The senate trial rules stated that the governor was allowed to be represented by counsel who could question witnesses and challenge the evidence presented against him. The rules also allowed the governor to appear as a witness under oath. Blagojevich decided not to be represented in the trial, and neither he nor his counsel ever challenged the evidence against him or played any role in the senate trial. The governor's decision perplexed former public defender John Cullerton.
²
Instead, Blagojevich hired a public relations firm and went on the national talk show circuit to make his case. He proclaimed his innocence and challenged the house impeachment, the senate trial rules, and the legislative leaders—especially John Cullerton and Speaker Michael Madigan. Until his request to appear before the senate the previous day, the governor maintained no official contact with the senate.

The questions that lingered in the minds of John Cullerton, Eric Madiar, and Andy Manar were of a procedural nature: when and how to bring the trial to a close. The governor's request to make a statement to the senate had come as a surprise, but it provided the ideal event to bring proceedings to an end. The final day would include closing arguments from the house prosecutor, the governor's statement, a rebuttal from the prosecutor, senate deliberations, and at long last, the vote. Madiar wanted the senate to be fully in charge of events.
³
He wanted to ensure that there were no procedural ambiguities. The governor's offer to appear allowed the senate to avoid the situation of a trial in absentia. Cullerton, Madiar, and Manar wanted to give the governor every opportunity to participate, and they thought it was crucial to get Blagojevich before the senate, under oath or not.

As the final day began, Madiar gave Chief Justice Thomas Fitzgerald two scripts to read at the outcome of the senate vote. He had prepared one to be read for acquittal, the other to be delivered if the governor was found guilty. Aware of potential legal challenges to the senate trial, Madiar had painstakingly scripted all procedures. Every word had to be precise. Chief Justice Fitzgerald called the senate to order at 10:00
A
.
M
. The first order of business began with Deb Shipley, the secretary of the senate, reading the motion for leave. The senate readily agreed to allow to governor to appear, and leave was granted (551).
⁴
Although a motion and the granting of
leave was a business-as-usual procedure for the senate, the mood quickly changed as the senators turned to the serious matter at hand. Emphasizing the gravity of the occasion, the chief justice repeated twice to the senate that he would appreciate that there be “no movement in and out of the chamber floor during closing arguments” (552). The instructions illustrated the serious nature of the proceedings and profoundly affected the senators and the spectators in the galleries. The entire chamber went silent.

Fitzgerald recognized David Ellis for closing arguments and told him that he had sixty minutes to present his case. Ellis approached the podium set up below the senate rostrum and faced the silent senators. Realizing what was at stake, he faced his task with acute focus and some trepidation. As he spoke, the spectators' eyes moved from Ellis to individual senators, attempting to gauge their reactions to the prosecutor's words. He was asking the Illinois senate to remove Blagojevich and invalidate an election—the sovereign expression of the will of the people. The trial rules prohibited any outside communication with senate members, and Ellis later stated that during his closing argument, he concentrated on his notes and his eye contact with the senators was limited. He had little indication whether his words were resonating with the audience.
⁵

Several office holders were present in the galleries. State Comptroller Dan Hynes observed the proceedings closely. Representative Jack Franks, who had pressed for the governor's impeachment months before, observed the proceedings with a feeling of satisfaction and pride in the legislature and the legislative process. After months of urging the governor's removal from office, his efforts were finally about to come to fruition.
⁶
Representative Susana Mendoza sat in the front row of the president's gallery, her head resting on her hands. She had initially supported the efforts of Rod Blagojevich but came to realize that his words and promises were all a charade. Now she vigorously endorsed the governor's impeachment and was satisfied that she was playing a part in his removal from office.
⁷
Jim Durkin, the Republican spokesman on the house investigative committee, watched intently and recalled the satisfaction he had felt as a county prosecutor.
⁸

In his opening statement to the senate, Ellis had informed the senators what the evidence would prove. The evidence had been presented, the witnesses had been heard, and now Ellis had one more opportunity to convince the senate that the evidence provided overwhelming cause to remove the governor. He stayed on point and recounted the evidence, incident by incident, one last time. To justify Blagojevich's removal from office,
Ellis was careful to establish both criminal charges and administrative malfeasance. His remarks were presented to the senate in two categories: criminal acts, extracted from the criminal complaint and the four supplied FBI recordings; and acts of maladministration and misadministration by Blagojevich during his six years as governor. Ellis intended to demonstrate a “pattern of abuse of power” that was motivated by the governor's personal operating criteria as described in his own words in the FBI recordings: “his legal situation, his personal situation and his political situation” (553). Ellis summarized the evidence with an air of indignation.

He started with the criminal allegations and the charge that had received the most national media attention during the prior eight weeks: the selling of the US Senate seat vacated by Barack Obama (553–55). Many of the Illinois senators, both Democrats and Republicans, had taken pride in Obama's election. Barack Obama was one of their own; most members sitting in the senate that day had served with him, and many were friends. Ellis was shrewd by leading off with the selling of the senate seat. He recognized that the scheme to trade for Obama's replacement would have a deep negative reaction among the sitting senators.

Ellis followed the senate seat sale allegation by reiterating that the governor had given instructions to inform the Tribune Company that $150 million in state assistance would depend on the firing of members of the editorial board. He reminded the senate that the
Chicago Tribune
had delivered a steady flow of criticism and had doggedly scrutinized Blagojevich, and that the newspaper had recently called for an investigation of his activities (557–59).

In May 2008 the legislature had passed an ethics bill aimed directly at stemming the governor's attempts to extort contributions in exchange for lucrative state contracts. HB 824, sponsored by Representative John Fritchey and Senator Don Harmon, prohibited state contractors who received contracts of $50,000 or more from contributing to the elected official who oversaw the contracts. After much debate and many amendments, the bill was sent to the governor on June 30, 2008.
⁹
Publicly, Blagojevich lauded the intentions of the bill but claimed it was flawed because it did not include all state officeholders and members of the General Assembly. Privately, he worked to kill the bill and amended it to include all state officers and the General Assembly. He sent the bill back to the legislature, confident that his amendment would not be accepted by the legislature and that there would not be enough votes to override his action, which would require a vote of
three-fifths majority in the house and in the senate. A common strategy in Illinois' legislative process is to add provisions to a bill to make it so draconian that it loses support and eventually dies. Thus the governor was hoping his action would cause the bill not to be called, and it would die.

But Blagojevich received no support in the house, which, without any hesitation, overrode his amendatory veto 113 to 3 and sent the bill to the senate for action. There was some concern that the bill would not be taken up by the senate, still under the control of Blagojevich's ally Emil Jones, the senate president. If the senate did not act on the bill in a fifteen-day period, as mandated by the Illinois Constitution, the bill would die. HB 824, as sent originally to the governor, had overwhelming support of the public and among several prominent legal scholars.
¹⁰
Supporters of the bill urged presidential candidate Barack Obama to become involved because they thought he could influence Jones. Jones had often claimed to be Obama's mentor, and they knew that if Obama's home state failed to pass the ethics bill, it would reflect poorly on his candidacy. Obama called Jones and urged him to move the bill. Jones did and the senate quickly overrode the amendatory veto 55 to 0. The original HB 824 became law on January 1, 2009. Jones later said that those who urged Obama to call did not understand the Constitution and that he had plenty of time to call the bill.
¹¹
Reportedly, Blagojevich was livid and concluded that Jones, his last ally in Springfield, had abandoned him in favor of Barack Obama.
¹²
Faced with the prospect of limited contributions from state contractors after January 1, Blagojevich stepped up his efforts to raise as much cash as possible in the remaining six weeks. He embarked on an ambitious fund-raising campaign to raise $2.5 million before the bill became law.

Ellis moved on to the government charges of Blagojevich's pay-to-play schemes gleaned from the wiretaps. He began with the most despicable charge: that Blagojevich had attempted to coerce Children's Memorial Hospital into making a contribution in return for the state providing pediatric care reimbursement and had contemplated breaking his commitment to the hospital if he did not receive the contribution right away (559–60). The senate sat stone-faced.