Although the events presented in the two auditor general reports had occurred years before, during Blagojevich’s first term, legislative leaders had taken no action. Ellis, however, took note. He had a mere six days to prepare a case. The CMS audit showed a pattern that was suspicious, but investigating the contract delays would take time, and anything of tangible substance would require an investigative staff to uncover. But the content in the available auditor general’s reports concerning the flu vaccines and the I-SaveRx program provided ready grist for establishing a cause for impeachment.
Another administrative incident that Ellis could quickly draw on concerned an ongoing conflict between the governor’s office and the legislature over the authority of the Joint Committee on Administrative Rules (JCAR) to review, approve, change, or prohibit administrative rules developed by state agencies under control of the governor. Administrative rules interpret and implement the provisions of statutes passed by the legislative branch of government. In 1977, through an amendment to the 1975 Illinois Administrative Procedure Act, Illinois required that all rules proposed by state agencies be submitted to JCAR for review and approval. JCAR is made up of twelve members, equally divided among the two parties and the two houses, and is supported by a staff of specialists. The committee, established as a service agency of the General Assembly, presents the opportunity for public and private entities to participate in the process of rule development through written comments or by an appearance before the committee.30 JCAR can issue a formal objection to a proposed rule if the rule is determined not to be in the public interest, safety, or general welfare, or if it would violate existing law. By a two-thirds majority vote, the committee can reject a rule. The purpose of the JCAR review is to ensure a balance between the executive and legislative branches of government.31
The controversy between JCAR and the governor began in 2007, when the Department of Healthcare and Family Services (HFS), the state agency responsible for state health care programs, refused to comply with a decision by JCAR. The federal government had assisted in a state program, FamilyCare, which provided health care coverage for children and the adult relatives responsible for the children enrolled in the program. In 2007 federal assistance with the adult coverage expired, and an estimated fifteen to twenty thousand Illinois adult participants would lose health care coverage unless the state made up the federal shortfall. The state statute that created the adult participation was tied to the federal contribution and set an income limit for the adult program participants of 185 percent of the federal poverty level. At the end of 2007 HFS responded with an emergency rule before JCAR to continue the adult coverage.32 But the emergency rule expanded the coverage income limit to 400 percent of the federal poverty level. The adjustment in income level would add thousands of new participants to the program without legislative approval or appropriation. JCAR rejected the emergency rule and urged HFS to resubmit the rule using 185 percent of the federal poverty level, the established income level. HFS ignored JCAR’s action, however, and continued to enroll participants at 400 percent of the federal poverty level.
The actions of HFS became the subject of a citizen suit. Richard Caro, a lawyer from Riverside, filed suit to prevent the governor from unilaterally imposing unfunded programs that were not authorized by the General Assembly—a violation, Caro claimed, of the prerogative of the General Assembly and the Illinois Constitution. The lawsuit was filed two weeks after JCAR rejected the emergency rule.
The JCAR controversy provided a solid case for charging Blagojevich with misfeasance, the unlawful execution of a lawful act. Once the investigative committee was announced, Barbara Currie asked two professors from the highly respected University of Illinois Institute of Government and Public Affairs, Robert Rich, the institute’s director, and Andrew Morriss, a professor of law and business, to appear before the committee and present a “comprehensive” explanation of the JCAR experience with HFS.33 Currie and Ellis wanted the investigative committee—and perhaps more important, the public—to be presented with the history, purpose, and legal authority of JCAR’s regulatory review. They were well aware that a possible defense for Blagojevich might be that the legislature had been acting for political reasons and he might portray himself as a governor who was interested only in helping people. It was important for the committee to establish that the state statutes and the administrative system guarantee a balance between the executive and legislative branches, that the administrative system allows for transparency and input from the public, and that the constitution and the administrative system were being violated because the governor refused to comply with the JCAR decision. The concept of legitimacy was a foremost concern of the Democratic house leadership. Having constitutional sanction, expressed by professors at the respected University of Illinois’ Institute of Government and Public Affairs, would serve to show institutional support for the impeachment effort. The professors were requested to appear before the committee in two days. Morriss and Rich immediately began to collaborate and prepare their presentations.34
The governor’s handling of contracts and leases provided house investigators with another intriguing area for review. Almost immediately after Blagojevich assumed office, the procedures associated with the procurement of both material and rented space for state offices were greatly altered. In 2003 the state ceased all lease renewal activities. Leases that expired fell into a category known as holdover leases. Lease activity resumed in 2007 after some leases began to reach the ten-year limit prescribed under the Illinois Procurement Code. Prior to the Blagojevich administration, the number of holdover leases was negligible, but by the end of 2003 the number had risen to 93 and by 2005 it had ballooned to 172. A lease that went into the status of holdover became problematic for the state and gave advantage to the lessors. Lessors were no longer required to make necessary repairs, and the state could not modify occupancy space and would lose all leverage in negotiating a continued stay.35
Franks noticed the dramatic increase in holdover leases and speculated that the reason leases were not renewed was to grant advantage to lessors in exchange for campaign contributions. Staff of the Procurement Policy Board (PPB), the agency responsible for reviewing and making recommendations to state agencies engaged in the procurement process, became concerned over the holdover situation. Created in 1998 as part of Illinois’ newly adopted Procurement Code to ensure that state agencies operated under the guidelines established by law, the PPB was made up of five members: a chairman and four members appointed by the legislature. From the very beginning, the PPB clashed with the Blagojevich administration. Matt Brown, the PPB’s executive director since its establishment in 1998, discussed the holdover situation with staff and members of the agency and kept legislators apprised.36
Brown expressed his reservations and frustration after Blagojevich in 2003 signed Executive Order No. 2003-10, which consolidated facilities management, internal auditing, and legal functions for all agencies that reported to the governor, turning control over to CMS. The governor’s office unveiled the executive order with much fanfare, billing it as a cost-saving move. But what the order gave the governor was priceless: control of all facilities management and legal review under one agency that he could more easily direct and oversee. After one particularly acrimonious meeting, Brown was told to leave the CMS offices because he “was not a team player.”37 From that point on, Brown and the PPB remained at odds with CMS. Brown did his best to brief legislative members on the problems that PPB faced with CMS and with the procurement of leases and the selection of vendors. The legislature eventually became aware that PPB was at the forefront of administrative clashes with Blagojevich and knew the details. Still, Brown recalled, it took several weeks for Franks to work with him. “He thought I was part of the Blagojevich problem,” said Brown.38 In a formal letter, Barbara Currie requested that Matt Brown appear before the committee. She asked him to describe the PPB’s relationship with the Blagojevich administration as compared
with previous administrations and to report on the administration’s handling of leases and space requirements. Brown started to prepare.
Chapter 3
The House Investigation
The First Day
The house wasted no time in commencing the impeachment investigation. On Tuesday, December 16, one week after the governor was arrested, the leadership of both parties had designated the members of the Special Investigative Committee, and the committee held its first meeting. Speaker Madigan was acutely aware of potential political ramifications imposed by the house action. Propriety required political inclusiveness; the investigative committee process had to be transparent, be sanctioned by Illinois’ Constitution, and follow the rule of law. The committee could not exhibit the slightest hint of political motivation and needed to display broad support across the state for impeaching Blagojevich. Committee members were chosen to reflect gender and geographic and racial diversity.1 The Democrats supplied a required number of African Americans, Hispanics, and women. The Republican committee members consisted of men and women from districts in both northern and downstate Illinois. Anticipating the legal discussions that would be generated by the impeachment action, both parties provided a number of accomplished attorneys.
Expecting a large public attendance at the hearings, the committee met in the largest house committee room in the capitol, room 114. On session days, when committee meetings are scheduled, one or two security guards are stationed outside the doors of room 114. Ordinarily, people walk in and out as committee business proceeds, and small groups gather in the marble hall to discuss the various bills that are being considered. People come and go as they see fit, as their curiosity is satisfied or their business is finished. But on the first day of the hearings, security at room 114 was noticeably heightened. A special security screening was set up outside the public entrance. Seats in the audience were on a first-come basis, and standing in the room was not allowed. The public was informed that if spectators left for any reason, they risked losing their seats. A special section was designated for legislators who were not members of the committee. To accommodate the press coverage for what would be a major media event, an adjoining room was set up with a video stream.
When the committee was called to order, it became immediately clear that no investigative business would take place that day. No witnesses would be called, and the governor was not present or officially represented. The purpose of the meeting was to formally open the investigation. The schedule and contents of the hearings were still uncertain. What would be investigated, what witnesses would be called, what evidence would be presented, and what rules would guide the investigation were not yet fully developed.
After officially opening the hearing and taking the roll call, the committee chairperson, Barbara Currie, asked whether a representative of the governor was present. Aware of future legal challenges to its actions and the importance of public opinion, the committee demonstrated its effort to be fair by offering the governor every opportunity to participate in the investigation. Currie’s question was met with silence. Currie then formally introduced the committee members to the public and took note that Speaker Madigan was present in the audience. David Ellis was formally named committee counsel, and Jim Durkin was designated as minority spokesman. Matt O’Shea, the Republican chief of staff, was named minority legal counsel.
Currie’s opening remarks established the public narrative for the investigative committee. She justified the action of passing HR 1650, described the circumstances of the arrest and the content of the criminal complaint as distressing, and stated that the legislature had given the governor a full week to resign. She sought to establish the legitimacy of the committee by citing the Illinois Constitution as the authority for the house to undertake an investigation of the governor. Currie pledged that the committee would be fair and the investigation would be conducted within the guidelines established by law, noting that the 1970 Constitution provided an “orderly and lawful means” to address circumstances of this nature. Cognizant of possible negative political and public perceptions of the house investigation, Currie cautioned against a “rush to judgment” and stressed that due process and the rule of law would guide deliberations. Once the investigative committee was announced, however, there was no doubt that Rod Blagojevich would have to resign or be impeached and tried in the senate. The investigative committee had not been formed to conduct a prolonged investigation, but to review the evidence accumulated by Ellis and his staff, justify cause, and pass an impeachment resolution. The investigative committee was part of the process to remove Blagojevich from office, but it had to provide the governor the right to participate, refute the charges, and argue his case. Currie emphasized that the committee did not want to interfere with the federal investigation of the criminal complaint that was being conducted by the US Attorney’s Office.2
For the record, Jim Durkin also stressed the importance that committee members put aside any preconceived notions and feelings about the governor and advised them not to prejudge. “This has to be a fair and deliberative process,” he said. The former state and county prosecutor likened the committee to a grand jury and said it must afford the governor due process, which was “paramount to our system.” Partisan politics had predominated in the Illinois house for several years, and a degree of partisanship continued in the investigative committee. The Republican Party was relegated to the back bench, a situation that was not lost on Durkin. He wanted the committee to function in a bipartisan manner, and he cautioned that if the Republican members of the committee felt that the Democrats were infringing on their rights, they would hear about it.3
With no witnesses or agenda yet identified, Currie recognized each committee member for brief opening remarks. Members presented their obligatory statements, holding to a theme of fairness and due process. A few, anticipating the extensive press coverage, used the time to express outrage and shame. Without committee rules or a substantive agenda, the meeting was short. Currie announced that the committee would meet the next day, and the proceedings were adjourned.
Criminal Charges
The following day, Wednesday, December 17, the committee began the work of developing a cause to impeach Rod Blagojevich. The governor was facing two distinct legal challenges: the criminal charges that were certain to be forthcoming from the US Attorney’s Office, which would follow predictable court procedures, and the impeachment proceedings taking place in the Illinois General Assembly, which were not subject to court precedent.
Barbara Currie opened the second day of investigative hearings by recognizing Ed Genson as the governor’s counsel. On December 10, the day after his arrest, Blagojevich had contacted this well-known criminal defense attorney to represent him in the house hearings. The skillful and colorful Genson was a high-profile Chicago attorney whose past clients included Conrad Black, the former chairman of Hollinger International, and R&B singer R. Kelly. Both cases had been well covered by the Chicago press. Now, his entry into the hearing room caused a noticeable stir from the audience. The sixty-seven-year-old Genson, using a motorized scooter, passed down the committee room aisle like a celebrity, shaking hands with well-wishers and stopping occasionally to exchange greetings with friends. Genson was at home in Chicago’s federal and Cook County courts, but now, dealing with the Illinois house, he was entering new territory. The investigative committee was not a court of law, and though there were some commonalities, it did not function strictly as a grand jury. The rules of evidence and the extent of due process were at the committee’s discretion, and the rules regarding the conduct of the impeachment investigation were developed by the investigative committee. Genson was given little notice of the administrative matters that would be presented to the investigative committee and was prepared only to respond to the criminal complaint that had led to the governor’s arrest.4 He was assisted by Chicago attorney Sam Adam Jr.
Currie reiterated her remarks of the day before that the committ
ee “was not a court of law” and “not quite a grand jury.” She reminded everyone that the committee was not subject to the rules of evidence or any procedures that might apply in a court of law. She then introduced David Ellis to present the rules that the committee would follow during its investigation (48).5
Ellis and his staff had been working on the committee rules for the past week. The Republicans were not consulted or given an opportunity to provide suggestions and had received the rules from the Democratic staff the evening before.6 It was clear that the rules gave the Speaker full control over the hearings, and Republican members were not pleased. Jim Durkin’s response to the committee rules was predictable but measured. He and Matt O’Shea had gone over the rules with Currie the night before, and he was particularly concerned that subpoena power was granted only to Currie and the Speaker. Rules governing the 1997 impeachment investigation of James D. Heiple established a committee co-chaired by a Democrat and a Republican. The members of the 1997 committee were evenly divided between the two parties, and subpoena authority was jointly shared. Heiple was a Republican, and in 1997 the Illinois house had been controlled by the Democrats. Giving the Republicans equal control of the Heiple investigation helped the majority Democrats erase notions that he was being investigated for political reasons. Now the house was once again controlled by the Democrats, but Blagojevich also was a Democrat. Blagojevich’s governing antics had been widely reported, and granting the Republicans equal control of the investigation could result in the investigation probing into areas that might be politically embarrassing for the majority party. The Speaker needed to ensure that he would maintain control of the proceedings, so the minority party was relegated to the back bench.
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