Due Process for Blago: What It Means

A Cornell professor has entered a plea in behalf of Milrad Blagojevich, arguing that the soon-to-be-ex-governor is being condemned by the Illinois legislature on weak evidence without due process of law. Dave Kopel feels the same way. Neither of these estimable figures is the sort to have a natural sympathy for Blago, and their arguments have a patina of high-minded devotion to justice. As Mr. Kopel puts it,

[T]he evidence against Blagojevich consists almost exclusively of an FBI agent affirming the authenticity of highly selective excerpts from surveillance tapes which he provided via an affidavit. Notably, Agent “Cain refused to answer whether the excerpts in the affidavit put events in ‘the proper context’ (Tr. 293) or whether he has learned anything in the seven weeks since he signed the affidavit which ‘would make any of the statements in your affidavit untrue?’ (Tr. 299).”

Put me in the camp that is reluctant to ruin someone’s life just because Patrick Fitzgerald says so.

In his round of television appearances, Blago has declared that the portions of his recorded conversations that have so far been made public are taken out of context and that, when the full truth is known, he will shine resplendent as a defender of the little guy against a conspiracy of malefactors.

Fine. He has the opportunity to present the context and explain away his seemingly incriminatory statements. He can put on a defense at his Senate trial. He can testify under oath. He can call witnesses. He can review the prosecution’s evidence in detail and expose its flaws. But he chooses instead to confine his defense to the airwaves and, reportedly, a closing statement to the Senator-Judges.

In a criminal trial, he would have the right to say nothing and compel the government to prove his guilt beyond a reasonable doubt. Messrs. Jacobson and Kopel are essentially applying the same standard to an impeachment, and there, I believe, they go astray.

Americans have rights to life, liberty and property that can be taken away only by due process of law, a term that incorporates all kinds of safeguards for defendants. Private citizen Milrad Blagojevich can’t, and shouldn’t, be sent to prison unless the U.S. attorney can offer a case that, entirely on its own, demonstrates his guilt. I’ll grant arguendo that the prosecutors before the Illinois Senate haven’t done that.

Tenure in a high public office is not, however, a right. It is an honor and privilege. If the governor of Illinois, faced with the evidence that has been made public, can’t or won’t offer reasons why we should believe him innocent, I see no reason for allowing him to remain in office. It’s up to Blago to show why the citizenry ought to trust him to exercise executive powers – not up to us to wait patiently for the assembling of an iron-clad case against him.

Comments

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Tom Veal wrote: "He has the opportunity to present the context and explain away his seemingly incriminatory statements. He can put on a defense at his Senate trial. He can testify under oath. He can call witnesses. He can review the prosecution’s evidence in detail and expose its flaws."

No, he can't. The Senate Rules do not allow Blagojevich any of the options you cite. Please take a look at the reports by attorney William A. Jacobson at Le-gal In-sur-rec-tion for a full discussion of the restraints placed on Blag's ability to defend himself. He is specifically forbidden to inquire into the evidence against himself or to call any witnesses. Jacobson also reports other irregularities in the way this impeachment is being conducted, including the way Fitzgerald's criminal complaint affidavit is being used. Jacobson considers the impeachment process in this case to be unconsitutional, unjust, and unfair. Regardless of what we might think about Blagovich, we should all insist that he be given the right and proper means of defending himself from all charges.

Consider the following posts, just to begin with:
http://legalinsurrection.blogspot.com/2009/01/just-say-no-to-flawed-impeachment-of.html

http://legalinsurrection.blogspot.com/2009/01/at-least-one-illinois-senator.html

http://legalinsurrection.blogspot.com/2009/01/unjust-and-unconstitutional-trial-of.html

Here's a sample from that last link:
"While the criminal complaint allegations are the reason the impeachment process started, Fitzgerald has made sure that Blagojevich was not able to obtain the evidence necessary to defend himself in the impeachment process against such charges. At Fitzgerald's request, the House impeachment committee forbade Blagojevich or anyone else from inquiring into the evidence supporting the criminal complaint affidavit. Instead, the House took the affidavit to be true, and based much of the article of impeachment solely on the affidavit. The Illinois Senate has accepted the house impeachment record, which incorporates the criminal complaint affidavit, into evidence while forbidding anyone from challenging the record. (Senate Rule 8(b))
"The Senate also has forbidden anyone, including Blagojevich, from seeking any evidence which, in the sole estimation of Fitzgerald, would endanger the criminal case. (Senate Rule 15(f)). Blagojevich cannot call witnesses, such as Rahm Emanuel and Valerie Jarrett, who are believed to be persons referenced in the criminal complaint affidavit as persons to whom Blagojevich attempted to sell the Senate seat, despite denials by Emanuel and Jarrett that any such attempt was made. So Blagojevich cannot call material witnesses to cast doubt on the specific and overall reliability of the criminal complaint affidavit. Rule 15(f) violates fundamental fairness.
"More important, Rule 15(f) gives to Fitzgerald decision making power over the Senate trial. I believe this provision violates the Illinois Constitution, Article IV, Section 14, which states that "impeachments shall be tried by the Senate." Nothing in the Constitution vests the U.S. Attorney with the power to try a Governor, but here, the U.S. Attorney has been given the power to make decisions over the evidence permitted at the trial. The delegation of trial authority to Fitzgerald is unconstitutional, and is an irrevocable taint on the trial process."

Please do take a long look at Le-gal In-sur-rec-tion. I was shocked to see what's happening in this case. I am not defending Blagovich -- I am concerned about the abuse of the legal system in general and the impeachment proceedings in particular. Something stinks big time in Illinois, and it isn't just the governor.