The Railroading of Blagojevich
by Kevin R. C. Gutzman
by Kevin R. C. Gutzman
The subordination of even the most important operations of state government to even the least such of the Federal Government impresses itself upon the mind in virtually every day's news. Consider the current impeachment drama in Illinois.
The prosecutor, U.S. Attorney Patrick Fitzgerald, told the Illinois legislature that it should not allow Governor Rod Blagojevich to subpoena key Obama functionaries. As the Illinois House of Representatives considers the question of his impeachment, his counsel, Edward Genson, asked the committee to subpoena 21 witnesses. Included on the list were soon-to-be Obama chief of staff Rahm Emanuel and close Obama aide Valerie Jarrett.
Of course, Genson is no dummy: he knew that this request bade fair to make the Democrats who control the Illinois House of Representatives blink by at least postponing the impeachment hearings. After all, Democrats in Illinois do not want to embarrass Obama during the transition to his administration. Yet, there is no denying that Emanuel and Jarrett may possess information relevant to Governor Blagojevich's (a fellow Democrat's) defense.
How do we know that? Because people in the office of Prosecutor Fitzgerald himself recently interviewed them both about his investigation of the governor.
Also on the list was Representative Jesse Jackson, Jr. Jackson has publicly conceded that he considered himself to be in the running for appointment to Obama's old seat. Jackson also publicly identified himself as the unnamed person in a Fitzgerald filing whose agent allegedly offered Blagojevich something in return for the post. Although Jackson denies having been behind any such quid pro quo offer, surely he too has evidence that Blagojevich is entitled to have the Illinois House's impeachment committee hear.
Republicans on the committee agreed with the governor. Majority Democrats did not. The committee rejected his request.
Fitzgerald cautioned that to grant Blagojevich's request might be to thwart his criminal investigation. But what alternative is there?
Rod Blagojevich was elected to the highest office in Illinois's gift by a margin of over 10% of the vote. He received the votes of more than 1,736,000 Illinoisans when reelected at the 2006 election. The question whether he should be removed from office by the Illinois General Assembly is of more significance than any criminal prosecution, even one so significant as that of a governor accused of political corruption in the office of the governor. (If the evidence is so clear-cut as Fitzgerald claims, Blagojevich likely could be both accorded a fair impeachment process and subsequently convicted of whichever misdeeds he committed.)
Obama loyalists in Illinois politics, of whom there are legions, have every incentive to refuse to allow the governor to subpoena people close to Obama. Yet, they obviously cannot put it quite that way. How, then, should they put it?
One member of the committee asserted that Blagojevich's attorney intended by asking that these witnesses be called "to turn this [that is, the impeachment process] into a circus or sideshow." But the governor has a right to a full defense, and the people of Illinois have a right to a full hearing. To allow Blagojevich's counsel to subpoena witnesses in possession of relevant evidence is a minimal requirement of due process. The committee can still correct its error. It should correct its error.
Fitzgerald said in the press conference in which he laid out his charges for the public that Blagojevich was an eminently corrupt public official. That may well be. Interestingly, one might note that the statute Fitzgerald is enforcing against the governor bases Congress's claim of power to criminalize corruption in state office on the Constitution's Commerce Clause. One really wonders at the idea that conspiring to sell Jesse Jackson, Jr. a Senate seat is interstate commerce. No one takes this idea seriously; rather, it is based on a common lawyers' corruption — yes, corruption — of language. On simple federal arrogation of state power. This corruption has far more far-reaching consequences than anything Blagojevich is accused of having done.
Whether Blagojevich will be run out of office without being allowed to mount a defense is ultimately for the people of Illinois, through their elected representatives, to decide. Blagojevich was an unpopular governor even before Fitzgerald's allegations against him became public, and Democrats in the legislature seem predisposed to accept the U.S. attorney's unproven allegations. It seems they will allow him to be railroaded from office. It may be that the Illinois legislature will decide that the imperatives of a low-level Justice Department employee, the U.S. Attorney for Illinois, are more significant than the imperative to conduct a full and fair impeachment inquiry before tossing out an elected governor.
All of this is not to say that Blagojevich, formerly a three-term U.S. representative, has ever demonstrated any interest in proper federalism either. In fact, his lawyer threatens to appeal to the federal judiciary if he is displeased by the Illinois legislature's behavior in the case.
Still, if Blagojevich is not allowed to present a defense, no one should mistake that he is being railroaded in the name of protecting Barack Obama and others from potential embarrassment. To this outsider, it seems that Illinois Democrats' priorities are skewed.
January 6, 2009
Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of Virginia's American Revolution: From Dominion to Republic, 1776—1840 (newly available in paperback) and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.
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