Rod Blagojevich Challenges Impeachment Rules

Illinois Senate Rules May Violate US Constitution

Jan 24, 2009 David J. Shestokas

In a news conference Illinois Governor Rod Blagojevich pointed to two Senate Rules regarding his impeachment trial as fundamentally unfair.

The Illinois Governor, arrested in December by federal officials on corruption allegations, was impeached by the Illinois House of Representatives. A trial by the Illinois Senate on the impeachment allegations is now scheduled. The Senate adopted rules to conduct the trial.

The governor and his lawyers have said they will boycott the trial due to unfair rules. Blagojevich has pointed out two rules in the process for determining if he is to be removed from office as constitutionally unfair.

Impeachment Differs from Criminal Trial, but Due Process Still Required by US Constitution

The impeachment process determines if Blagojevich will be removed from his job and prohibited from holding future public office. An impeachment conviction will not jail the Governor. Since his freedom is not at stake, he is not entitled to all the protections of a criminal defendant, but he is entitled to appropriate due process.

The US Constitution’s 14th Amendment requires a state seeking to take someone’s life liberty or property must employ fundamentally fair procedures. The US Supreme Court has found that state employment, with a specific term, is a property interest. The state must follow due process to take away that job.

Fundamental fairness has basic principles, and among them are the rights to challenge evidence and to call defense witnesses. The rules of the Senate may violate the United States Constitution.

Rules of Evidence in the Impeachment Trial Prohibit Challenges to House Investigation

From criminal court trials to parking ticket hearings there are rules governing information presented to the decision maker. Criminal proceedings have complex rules aimed to preserve fairness to the defendant whose liberty is at stake. For parking tickets, where a small fine may be imposed, the rules are much simpler. In every instance, from criminal complaint to parking ticket, the document, and the investigation producing the document which begins the trial process, is subject to challenge.

The Article of Impeachment, passed by the Illinois House of Representatives, containing 13 allegations against Blagojevich based upon the House Committee Report launches the Senate impeachment trial. In relation to the House report and the Article of Impeachment, the Senate Rule is as follows:

Rule 8(b): The House Prosecutor or the Governor or his counsel may object to the admission or exclusion of evidence. Any objection must be addressed to the Chief Justice. No objection, however, may be made against all or any part of the House impeachment record filed by the House Prosecutor with the Secretary.

Governor Blagojevich contends this rule, which turns the House allegations into evidence against him without his ability to object to the evidence is fundamentally unfair.

Rules in the Impeachment Trial Limit the Governor’s Ability to Call Defense Witnesses

In all US proceedings, the defense has the right to call witnesses to present relevant evidence. Among the charges in the Article of Impeachment is that Blagojevich attempted to benefit personally from appointing a Senator to succeed Barack Obama. These charges are also part of the pending federal criminal complaint against Blagojevich. In relation to possible witnesses in the federal criminal proceeding the Senate Rules of Impeachment read as follows:

Rule 15(f): It is never in order to request a subpoena for the testimony of any person or the production of documents or other materials from that person if the U. S. Attorney for the Northern District of Illinois has indicated that that person’s testimony, or inquiry into that person’s testimony, could compromise the U. S. Attorney’s criminal investigation of Rod Blagojevich …

Blagojevich has indicated he would, if able, to subpoena White House Chief of Staff Rahm Emmanuel, Congressman Jessie Jackson, Jr. and Obama advisor Valerie Jarrett. The Governor indicates that these persons among others have knowledge that certain charges against him are false, but the Rules prohibit him from calling these witnesses on his behalf.

The Senate Rules May Create a Greater Crisis

It is not impossible that the Senate may convict and remove Governor Blagojevich, and that a federal court could order him placed back in office because the manner of his removal violated the 14th Amendment to the Constitution.

The copyright of the article Rod Blagojevich Challenges Impeachment Rules in Law, Crime & Justice is owned by David J. Shestokas. Permission to republish Rod Blagojevich Challenges Impeachment Rules in print or online must be granted by the author in writing.

Rod Blagojevich

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Jan 24, 2009 2:27 PM

Guest :

I'm not aware of any Supreme Court decision that says a state elected official has a property right in his office. The Governor holds his position by virtue of the Illinois Constitution and can be removed in accordance with it. There is just no federal issue here.

Jan 24, 2009 10:12 PM

David J. Shestokas :

The Blagojevich matter would be a case of first impression involving an elected official, there is a line of cases involving state employment requiring due process for removal. I did indicate that there is an argument that the Senate rules violate the US Constitution, specifically the 14th Amendment, which requires due process for actions taken by state government. Blagojevich would appear to have other problems legally contesting the Senate action because he is refusing to participate. His lack of participation would likely be found by a court to be a waiver of any due process violation. A court cannot find that he was denied the right to contest the allegations or call witnesses unless he participated and attempted the contest or issue subpoenas and was turned down. The strategy he has taken to this point makes his chance of success in court highly unlikely. In normal proceedings if one does not object to an action taken within the proceeding a court will not consider an argument later. I do believe if he or his counsel participated and challenged the rules within the Senate proceeding he would have strong arguments for due process violations. Though his position is created by the Illinois constitution, by virtue of the federal union, the Illinos constitution is subordinate to the US Constitution.

Jan 26, 2009 2:11 PM

Guest :

Seems to me the Kangaroos would be the ones who would ever deem an elected government position as someone's property. Ridiculous. The people giveth, the people taketh away.
I see no problem with waiting until after his trial though to throw his butt out. Even if they can't get him on selling the senate because his defense chalks it up to boisterous bravioso, they still have him on 50k he tried to pull from the hospital in campaign contributions. Either way he's done.
Time to clean house in every state. Dirty dogs robbing us blind to enrich themselves and their trophy wives.

Jan 26, 2009 11:22 PM

Guest :

"Objection" is a legal term of art. 8(b) says: "No objection, however, may be made against all or any part of the House impeachment record filed by the House Prosecutor with the Secretary." This means only that the house impeachment record is entitled to be admitted into evidence during the Senate trial. Blagojevich could still contradict the House record, and the Senate could still choose to give it no weight. Yet Blagojevich is pretending this means the Senate has to believe the charges against him.

Jan 30, 2009 5:20 AM

Guest :

Interesting read, except for the last point. It is a near certainty that a court, even if it finds that a violation of due process has occurred, WILL NOT order him emplaced into his former position. Other remedies will be available, including potential financial remuneration. But, honestly, a federal court countermanding an impeachment/removal process of a state congress?? No. Way.
Nice reach.

Jan 30, 2009 1:01 PM

David J. Shestokas :

This was written before Blago decided not to participate in the proceedings. He will have no luck in court now, because he made no record of his issues. He waived the issues by not participating. Had he done so there may have been other court action regarding injunctive relief to stay the proceedings while the due process arguments were made in court. Had the Senate proceeded while a challenge to the rules was pending, the scenario in the last paragraph might have happened. Certainly there is no possibility of a court reinstating him taking place the way things played out.

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