A Just Cause

by Sieracki, Bernard; Edgar, Jim;

  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).

  Some Republican questions were veiled attempts at partisanship. But the partisanship should not be dismissed as mere tribal gamesmanship. The Republican senators had chafed under the yoke of Emil Jones for six years. They had long complained and debated the state’s fiscal policies and the way the state was being managed, but Jones only dismissed and resented them. The partisanship snipes were the outpourings of pent-up frustrations and genuine anger. The Republicans were saying to the Democratic senators, this was your party’s governor, and your leadership allowed this to happen.7

  Senator Kirk Dillard, a Republican from DuPage County, ask
ed why Democratic US Senate leader Harry Reid was not subpoenaed. Reid had spoken to Blagojevich and discussed the senate vacancy, and Dillard queried, “Wouldn’t the Democrat leader in the US Senate be in a premier position to know the behind-the-scenes of who would join his caucus?” Ellis responded that he had no knowledge of the content of the tapes that were not released and that the house prosecutor could not subpoena the tapes (41–42).

  Republican senator Chris Lauzen, from Aurora, brought up the Z Scott report, paragraph 13 in the house impeachment article. The report addressed hiring and firing practices, but no witness was slated to address the report. Lauzen asked why. Ellis responded that the report had been a collaborative effort and the prosecution did not have a witness that had personal knowledge of the report. The house investigative committee had attempted unsuccessfully to have Z Scott testify, but Ellis felt that the report spoke for itself (46–47).

  Senator William Haine, a Democrat and the former state’s attorney from Alton, asked Ellis if Cain would testify as to whether exculpatory statements had been made by the governor or anyone acting for him on the tapes not heard by the senate. A seasoned prosecutor, Haine was concerned that the case developed before the senate remain fair and impartial. Ellis responded that he would highlight such statements and that when examining Cain, he would “make it a point of drawing those out of him.” He assured Haine, “You have my commitment to that” (50).

  When the questions from the senate were finished, Cullerton asked that the senate grant leave for all the motions requested by the house prosecutor to be voted on with one roll call. Rickey Hendon objected to Cullerton’s request. He was opposed to the Kirk-Foster amendment, restricting federal funds coming to Illinois, being accepted as evidence. The amendment had not passed, and Hendon felt that the amendment would be injurious to the state. With Hendon’s objection, leave was not granted. The senate voted separately on the motion to submit the Kirk-Foster amendment as evidence, and it was accepted with 48 voting yes and 11 no. Through separate votes, the senate approved all the remaining motions presented by the house prosecutor. With all pretrial motions complete, the senate took a short recess and prepared for the trial.

  Since the governor’s arrest, the days and nights seemed to run together for David Ellis. A few days before the trial, he left his Springfield home and moved into the downtown Hilton Hotel, because his wife had developed a severe cold and feared he would be infected. Ellis could not afford to be compromised; he was working nonstop, first with the impeachment investigation in the house and now as the house prosecutor in the senate. The trial was the most important professional event the young lawyer had ever undertaken. Fortunately, he could turn to others on the prosecuting team: attorneys Heather Wier Vaught, Cindy Grant, and Michael Kasper. Vaught and Grant were members of the house Democratic staff, and Kasper was an experienced trial lawyer who was no stranger to Springfield. He was a former chief counsel to the Speaker, and most of all, he had Madigan’s confidence.

  When the senate was called back to order, Chief Justice Fitzgerald, without fanfare, simply recognized Ellis for an opening statement. It took a moment for the room to adjust; the trial had begun. After the obligatory statements of gratitude for letting him appear before the senate, Ellis thanked the senators for undertaking the “awesome task” of an impeachment trial. He knew, he said, that the senators did not take the duty of holding a trial lightly and recalled “the look on all the faces” surrounding him and “the utter silence in the Chamber” as he entered the senate on January 14 to exhibit the article of impeachment. The assiduous house prosecutor had crafted his opening remarks to establish a feeling of unanimity between the house and senate. The house and senate were acting together; they had the same purpose. He established unity between the legislative chambers by drawing a parallel between the serious attitude displayed by the senate and the way the house deliberated over the impeachment resolution. The house had “accumulated a great volume of evidence, heard a great deal of testimony and deliberated on it.” The result, he told the senators, was a house vote of 117 yes and 1 no, for “a single Article of Impeachment alleging a pattern of abuse of power” (68). Ellis spoke in a manner that conveyed professionalism and detachment, showing little emotion to detract from what he was saying. His tone was devoid of theatrics, his pitch was steady, and he did not stress words.

  The nebulous, problematic word cause in the Constitution, and the varied understandings and interpretations that the word can generate, prompted Ellis to initially provide a definition of impeachment that would justify the actions taken by the house. He cautioned the senate that impeachment and removal were not criminal proceedings. “We are not here to punish Governor Blagojevich.” Rather, “the purpose of impeachment is [to] remediate . . . to protect the citizens of this state from the abuses of an elected officer.” The prosecutor announced that he would not attempt to prove that the governor had committed any particular state or federal crime. The criminal proceedings were months, perhaps years, away. Proving the criminal case would be the responsibility of the US attorney. Ellis said that the prosecution would show that “the Governor repeatedly and utterly abused the powers and privileges of his office,” a justifiable cause for removal. He would illustrate a pattern of abuse by using both things that “came to light from the ongoing federal investigation” that prompted the governor’s arrest and evidence that was “entirely unrelated to that investigation” (69–70).

  December 9, the day of the governor’s arrest, had become an indelible event etched in the memory of every senator. The astute house prosecutor took his audience back to the moment of the arrest. Everyone in the senate chamber, listening intently, recalled vividly the shock and shame of that morning and the disgraceful scene of Illinois’ governor being led away by FBI agents in handcuffs. Ellis explained why the arrest happened: the FBI had been secretly recording conversations, and those recordings, he assured the senators, will be “front and center in our case.” The recordings would contain the governor’s own words and show the governor directing people. The legitimacy of the actions by the law enforcement agencies remained unquestionable, and Ellis used this sentiment to emphasize the upcoming testimony of Special Agent Daniel Cain. He told the senate that Cain would declare that everything contained in the affidavit was “true and accurate.” He would play segments of the tape recordings so that the senators could hear the governor attempting to exchange the signing of legislation for political contributions. The governor’s words, he said, “may shock you. At times, they will probably disgust you” (70–71).

  The prosecutor then brought up what many felt was the most egregious charge against the governor: the selling of Barack Obama’s senate seat. The senate would be presented with evidence that Blagojevich plotted to obtain something of value, “like a sports agent shopping a star athlete to the highest bidder.” Ellis discussed the governor’s options at length. At first Blagojevich had high hopes, perhaps a cabinet-level position or an ambassadorship. He did not meet with success, and as his hopes were dashed, he began to explore a position with Change to Win, a union interest organization. When that option dissolved, he became frustrated and tried to obtain paid appointments on corporate boards for his wife. Finally, he was reduced to scheming for “good old-fashioned political contributions.” Ellis used a refrain that by now each senator was quite familiar with. It was the governor’s creed for political operations, his words to his advisors that were heard on the FBI recordings, the standards and criteria used to benefit Blagojevich: everything had to be “legal, personal, [and] political” (72–75).

  Ellis told the senate that he would demonstrate how Blagojevich abused the power of his office by attempting to trade official acts for personal or political gain. He told of the governor’s attempts to coerce the Tribune Company to fire members of the editorial board, to extract more contributions from road contractors by promising larger allocations for tollway improvements, to prompt horse-racing track officials to make contributio
ns in exchange for his signing legislation that would benefit the tracks, and perhaps most repugnant, to withhold an allocation for pediatric care from Children’s Memorial Hospital unless hospital officials made a political contribution. All the charges that Ellis spoke of had been recorded and discovered during the ongoing federal investigation. “The stuff we’ve talked about so far, these are the issues that were caught on tape” (75–77).

  The house prosecutor then seamlessly turned to the impeachment charges that were unrelated to the ongoing criminal investigation. The senators would hear of Ali Ata’s sworn testimony that he had received his position as executive director of the Illinois Finance Authority in exchange for a campaign contribution. The convicted Joe Cari would “testify that the Governor flat out told him” he could obtain political contributions from those who received state contracts. Ellis told the senate that the governor not only appointed people to the Health Facilities Planning Board but also “controlled how they voted.” At the recent trial of Tony Rezko, “it was corroborated by a number of people” that Blagojevich “switched the vote of his block from no to yes on a permit application by a hospital after that hospital agreed to give the Governor a campaign contribution” (78–79). The house prosecutor’s charges, with one corrupt incident after another delivered in rapid succession, had a noticeable impact on the senate. The senators sat transfixed.