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
Chapter 7
The Last Day
On 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.
Next, Ellis reminded the senate of the tollway shakedown. In contemptuous tones that betrayed his indignation, he explained how the governor had announced a package of improvement contracts for the Illinois Tollway Authority that was contingent upon the contractors making campaign contributions. Ellis used the governor’s own words from the criminal complaint: “I could have made a larger announcement, but I wanted to see how they performed by the end of the year. If they don’t perform, ‘F’ ’em” (560–61).
The house prosecutor moved on to the governor’s scheme to extort money from an executive at Balmoral Park horse-racing track, coercing him to pay a contribution if the governor signed a bill favorable to the horse-racing industry before the end of the year. Blagojevich’s former chief of staff, Lon Monk, was the lobbyist for the racetrack, and the governor used this connection to coerce Balmoral Park into raising cash in exchange for signing the bill. This charge was vividly presented to the senate, accompanied by the released government audiotapes (561–63).
During his closing arguments, Ellis again employed the recordings to supplement his narrative interpretation. Hearing the tapes along with the prosecutor’s presentation of the evidence had a profound impact on the senators. Even though they had heard the tapes twice before, the senate chamber grew silent. One more time, Ellis set the scene for each of the four recordings. He emphasize that Blagojevich knew exactly what was going on. Monk and Johnston were in Springfield working to pass the bill. Ellis’s choice of words in explaining the conversations to the senate served the prosecution’s purpose: to divulge the governor’s intent. He reminded the senators, “The Governor is saying John Johnston doesn’t want to pay the contribution until he’s sure the bill is actually going to reach the Governor’s desk” (564), using “pay” instead of saying “make the contribution.” Ellis’s technique of using the recordings of the governor’s voice and then interpreting what had been heard left little doubt as to Blagojev
ich’s culpability. The senators and those in the galleries sat in silence.
In a rapid, staccato delivery, Ellis recounted numerous other pay-to-play schemes and was keen to associate Blagojevich with convicted felons. Ali Ata admitted in federal court that he had paid for a position with the Illinois Finance Authority (IFA) and that he was told to report to the now convicted Tony Rezko. Mercy Hospital received a permit for expansion only after it gave a contribution to the governor.13 Joe Cari admitted that he told companies wishing to do business in Illinois that they needed to hire certain consultants that the governor and his administration had chosen (578–80).
Turning to Blagojevich’s record of mismanagement and maladministration, Ellis reminded the senate of the role of the legislative branch regarding the separation of power. Again in rapid-fire oratorical style, his voice rising, Ellis summarized the litany of charges: The governor disregarded the verdict of the Joint Committee on Administrative Rules (JCAR) on four different occasions and instructed the Illinois Department of Healthcare and Family Services (HFS) to implement the FamilyCare program in spite of JCAR’s objections. To secure jobs for selected people, often unqualified, the governor’s Office of Intergovernmental Affairs directed the Illinois Department of Employment Security to manipulate job descriptions, avoid veterans’ hiring preferences, and tell employees to falsify their job applications. The executive inspector general investigated and determined that the governor’s office was behind these actions, which demonstrated “a complete and utter contempt for the law.” The governor used the legislature’s so-called efficiency initiatives to “subvert the appropriations process” and merely move funds from one agency to another, resulting in contracts to favored consultants, including one contract granted to a company that did not exist at the time. Blagojevich violated federal and state law by directing the purchase of flu vaccines from a foreign country, despite knowing that such a purchase was illegal and that the vaccines were not needed. The I-SaveRx program was “more of the same.” Although the FDA told the governor—twice—that importing drugs from a foreign country was illegal, he proceeded anyway, apparently looking for “splashy press releases.” Finally, Blagojevich told the Chicago Cubs baseball organization, which was seeking IFA funds, that “they better get that project done by the January meeting of the IFA” because he was “contemplating leaving office in early January 2009” (580–84).14 To some aspiring governors sitting in the senate, those words were especially poignant.
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