Blagojevich faces tough trial in Senate


Published: Saturday, January 10, 2009 at 4:14 p.m.
Last Modified: Saturday, January 10, 2009 at 4:14 p.m.

SPRINGFIELD, Ill. -- Gov. Rod Blagojevich will face long odds, and perhaps some legal twists, in the Illinois Senate trial that will decide whether he'll keep his job or be tossed out of office.

It may be called a trial and involve the trappings of a courtroom, from a judge to exhibits and objections, but experts point out that the event will be political, not legal. The senators are free to base their decisions on old feuds and popular opinion if they want, rather than fine points of the law.

Still, some of the charges do involve fine points. Did a prescription-drug program violate pharmacy inspection laws? Did state agencies properly account for money they transferred to another state agency?

If Blagojevich loses the trial, he stands little chance of getting the verdict overturned by the courts, which shy away from tinkering with the impeachment process.

And if he testifies to defend himself, Blagojevich could find his words used against him by the federal prosecutors pursuing criminal charges against him.

"What does somebody do as an advocate for the accused? It's very, very difficult," said attorney Donald MacPherson, who represented Arizona Gov. Evan Mecham when he appealed his impeachment conviction to the state's Supreme Court.

Blagojevich was impeached Friday by the Illinois House on a vote of 114-1. Now the Senate will hold a trial. If Blagojevich is convicted, he'll be removed from office.

The allegations against Blagojevich include some of the criminal charges behind his Dec. 9 arrest by the FBI: scheming to benefit from picking President-elect Barack Obama's replacement in the U.S. Senate, using state programs to pressure people into giving him campaign money, bullying the Tribune Co. to fire editorial writers.

They also include management decisions. An inspector found Blagojevich circumvented hiring laws to give jobs to political allies. He expanded a health care program that had been rejected by lawmakers. He spent $2.6 million on foreign flu vaccine the state didn't need and couldn't bring into the country.

Blagojevich said this past week that the House impeachment process was biased and unfair. "When the case moves to the Senate, an actual judge will preside over the hearings, and the governor believes the outcome will be much different," his office said.

Chief Justice Thomas Fitzgerald of the Illinois Supreme Court will preside. But there are limits on what he can do. Under the rules likely to be adopted, the judge can rule on questions of evidence but the senators can overrule him.

The House chose to lump all the allegations together under a single, broad category "a pattern of abuse of power." That meant a House member might think a particular allegation didn't merit impeachment but could still conclude other charges were strong enough to justify a "yes" vote.

If the Senate adopts a similar approach, senators will have the flexibility to reject some allegations perhaps even some of the biggest and most colorful but still vote to convict. That can't be easy for the governor's lawyers to fight.

Conviction requires a two-thirds majority, or 40 of the 59 senators.

That means Blagojevich will need 20 senators on his side to keep his job. That's a tall order for a governor who has bickered and battled with lawmakers for years and whose top Senate ally President Emil Jones will retire before the trial gets under way. In fact, Blagojevich is disliked and mistrusted by many senators.

"If you look at it politically, what is the upside of somebody voting not to remove Rod Blagojevich from office? The public sentiment is pretty clearly 'Legislators, why are you dragging your feet on this guy?'" said Charles Wheeler, a former Statehouse reporter who now teaches journalism at the University of Illinois at Springfield.

Polls suggest Blagojevich has a small reservoir of good will left among black voters. The lone House vote against impeachment was from a black lawmaker.

But even if Blagojevich got the support of every black senator, he'd still have only half the votes he needs for an acquittal.

MacPherson, the Arizona attorney, suggested the governor's lawyers could press the Illinois Senate to adopt strict rules. They could argue the Senate must avoid the appearance of a witch hunt by operating like a criminal court, excluding some kinds of evidence and requiring a conviction only if the case is proven beyond a reasonable doubt.

Another problem for the governor, MacPherson said, is whether he should testify. If he doesn't, senators will hear from Blagojevich primarily through the damning quotes contained in an FBI affidavit describing his wiretapped conversations. If he does, however, he might give prosecutors something useful for their criminal case.

MacPherson noted one advantage Blagojevich has in the Senate trial: Since it's a political process, he can make political arguments that would be rejected in a criminal trial. His attorneys can try to sway the senators by arguing he's the victim of politics or that impeachment should wait for the outcome of the criminal case.

If the Senate convicts Blagojevich, experts say, an appeal to the courts is unlikely to work.

"This is entrusted by the Constitution to the legislative branch, and a healthy respect for the separation of powers suggests there is no role for the courts," said Andrew Leipold, a law professor at the University of Illinois at Urbana-Champaign.

Bradley Simon, a former federal prosecutor, suggested Blagojevich argue that the impeachment process should be stopped because it's interfering with the criminal case. If the Senate trial goes forward anyway, he said, that might help Blagojevich on the criminal side.

"If, in fact, the impeachment proceedings make it impossible for him to get a fair trial, I think it would not be a frivolous motion for his lawyers to move to dismiss the indictment," said Simon, now a New York defense attorney specializing in white collar crime.

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