Friday, January 9, 2009

The Blagojevich Matter Now a Three-Ring Circus: Fitzgerald Prosecution (RICO coming?); Illinois Impeachment (What Evidence?); Sen. "No Money" Burris

The Blagojevich affair has now become a three-ring circus.

Ring One: The Fitzgerald prosecution -- the first ring, and likely to be the last one with any clowns still active. The latest is that Blagojevich wants Fitzgerald off the case because of Fitzgerald's inappropriate comments when announcing the criminal complaint. Blagojevich has a credible point, which I wrote about here, although it does seem unlikely that his request will be granted. The next step for Fitzgerald is to bring an indictment against Blagojevich, and he just received an extension of the deadline -- it's now early April. Law professor William Jacobson at Legal Insurrection, who has been following this whole matter very closely, thinks Fitzgerald may be working up a RICO count (link ; link).

Ring Two: Impeachment. Blagojevich was impeached today by the Illinois House (link), and now a trial will occur in the Illinois Senate. If convicted, Blagojevich is removed from office. The major issue -- on what grounds and with what evidence can the Senate convict? There is no "high crimes and misdemeanors" language, but surely the grounds cannot be trivial or based on policy differences or based on general inanity, and surely there must be evidence adduced in support of conviction that Blagojevich can challenge. But where will the truly substantive evidence come from if not from Fitzgerald, and it is not clear how much he will release to the Illinois Senate (commentary on this at Legal Insurrection here). I expect lots of embarrassing testimony, ongoing worries about links to Obama and his people, and great theater.

Ring Three: The appointment of Roland Burris to fill Obama's vacant Senate seat. Senate Democrats fear that Burris's link to Democrat Blajojevich will doom a Burris-led Democrat ticket in Illinois in the fall 2010 election, and so wish to block his appointment, but as I commented (here), they do not have any good arguments on which to stand. Although they blustered at first about a constitutional basis for denying Burris the seat, upon his arrival in D.C. they resorted to a procedural, technical one -- that the Burris appointment did not have the certification of the Illinois Secretary of State as required by an old Senate rule. Today, however, the Illinois Supreme Court held (link) that the Secretary of State was not required to issue such certification, and that the Blagojevich appointment was valid already. Secretary of State White though still refuses to certify, so now Senate Democrats must decide if they will relent on their rule requiring certification. The Illinois Supreme Court went out of its way to assert that it is not at all clear that the Senate rule does indeed require certification, and that even if it did, it cannot be that a Senate rule can contravene a constitutionally-valid appointment. I expect Reid and his fellow Senate Democrats to fold.

Furthermore, to assure Senate Democrats, and everyone else for that matter, that his appointment did not involve any inappropriate quid pro quo with the tarnished Blagojevich, former Illinois Attorney General Burris stated (link), remarkably, that "there was certainly no pay-to-play involved, because I don't have no money."

John M Greco