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    Blagojevich Trial Day 2: The Gun That Didn’t Smoke

    Blagojevich Trial Day 2: The Gun That Didn’t Smoke

    I listened to much of day two of the Illinois Senate impeachment trial of Gov. Rod Blagojevich. This was the day when the smoking gun would be revealed, in the form of four audio tapes just released by U.S. Attorney Patrick Fitzgerald. Despite the claims in some of the television and print media, the tapes were no smoking gun.

    The tapes purport to show Blagojevich extorting a campaign contribution from a horse race track owner in exchange for Blagojevich signing legislation favorable to the race track. But all the tapes actually show is Blagojevich’s chief of staff urging Blagojevich to pressure the race track owner to pay up on a previously promised campaign contribution, and Blagojevich trying to confirm that the payment will be made. Nothing on the tapes states that Blagojevich would refuse to sign the legislation, already passed by a substantial majority in the legislature (including many of the Senators voting on impeachment), if there were no payment. You may be able to make the connection, but these tapes don’t do it. We would need much more evidence to show extortion or even conspiracy to extort.

    The only real value of the tapes was to finally hear Blagojevich’s voice. I say “finally” because Fitzgerald has not released the other tapes quoted in the criminal complaint affidavit. When you hear the media say “we have heard the tapes” and Blagojevich must go, what you really are hearing is the media saying “we have read transcripts of excerpts of the tapes chosen by the prosecutor” and we’ll suspend our normal distrust of prosecutors to believe that the excerpts are accurate, complete, and not misleading.

    The suspension of disbelief, however, is not warranted yet. In its 20-second news clips, and in the writings in the print media, no one is commenting on the absurdity of yesterday’s proceeding. FBI agent Daniel Cain, signatory of the affidavit on which the Senate rests much of its case against Blagojevich, was on the witness stand most of the day. The day went like this: Senate Prosecutor reads a paragraph from the affidavit quoting a portion of a transcript of a taped call, and then Cain says the paragraph was “true and accurate” at the time he signed the affidavit.

    Why go through this exercise, when Cain already affirmed in signing the affidavit that the contents were true and accurate, and the affidavit already is in evidence? Drama. Allowing the Senate Prosecutor to read out loud the transcript excerpts, with all the “bleeps,” was supposed to be dramatic. To this listener, the drama wore off after a few minutes, and the evidence seemed less, not more, overwhelming.

    Although not the first time I noticed this, when hearing the affidavit read out loud it became clear that much of the “evidence” against Blagojevich is double and triple hearsay based on questionable witnesses. Something along the lines of “John Smith, who is under investigation and trying to cut a deal for himself, testified that Mary Jones told him that Rod Blagojevich wanted a campaign contribution in exchange for ….”

    The other thing that jumped out when listening to the tapes and hearing Cain’s testimony in response to questions from Senators, is how truncated are the excerpts. With an Assistant U.S. Attorney at his side, Cain repeatedly refused to answer questions as to how the excerpts were selected, what else was on the tapes, or who else (including Senators voting on impeachment) was on the tapes (Transcript, 292-293) When Cain refused to answer if any other Senators were on the tapes, the transcript indicates that an unidentified person at the Senate trial said “Thank God.” (Tr. 293) So we may have potential targets of, or witnesses in, Fitzgerald’s investigation voting on whether that most famous target, Blagojevich, stays in office. Great.

    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).

    The Senators’ questions and Cain’s repeated refusals to answer were extremely damaging to the Senate prosecution, not that anyone seems to care. The Senate is relying almost exclusively on the Cain affidavit to prove the criminal allegations against Blagojevich. Yet Cain will not testify to anything other than what is in the affidavit, will not verify that the tape excerpts in the affidavit are in proper context, will not reveal what else is on the tapes, and will not even state that his affidavit is true and accurate based upon what he knows today as he is testifying.

    I have doubted the wisdom of Blagojevich in not showing up, and I still doubt that wisdom as it pertains to challenging the Senate Rules and procedures. As to witness Cain, there is nothing Blagojevich could have gained by cross-examining Cain, so there really was no reason to try.

    Any fair-minded person would be moving towards the conclusion that the Senate Rules, which do not allow Blagojevich or the Senators to challenge the evidence selected by Fitzgerald, are resulting in a trial which in fact is unfair. But there don’t seem to be many fair-minded people around when it comes to Blagojevich’s Senate trial.

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    Reverend S. Twine | January 28, 2009 at 11:06 pm

    I think you’re overall analysis is correct and that the impeachment trial does not comport with the Illinois Constitution. As someone who voted against Gov. Blagojevich in the 2002 primary and the 2006 general election, I am far from a supporter. But the voters are to blame for this. The lack of a recall provision – which the State Senate is largely responsible for failing to enact – has led to this boondoggle.

    In terms of the Constitution, I think one of the real problems is that the Senators, who sit in judgment much like a jury (or judge as trier of fact), are legally bound to do justice “according to law.” The same phrase appears at the end of Section 14, which provides that an impeached officer is liable to subsequent prosecution and punishment “according to law.” Canons of construction lead one to believe that phrase must mean the same thing.

    I don’t see how a Senator can vote to convict “according to law” if the underlying article of impeachment is based on criminal activity for which the Governor enjoys the presumption of innocence. Even so, the so-called criminal activity is not part of an indictment, but rather a complaint.

    I think the Senate will have a big problem if Blagojevich is later acquitted of the charges found in the complaint. I have not given thought to what, if any, potential remedies he might have. However, the grounds for conviction very possibly could be proven insubstantial in a court of law.

    This is somewhat akin to the Impeachment of Andrew Johnson, when the Tenure of Office Act (his purported violation of which led to impeachment) was later found to be unconstitutional, I believe on separation of powers grounds.

    If the House had chosen to impeach Blagojevich on some narrow political grounds (in this commenter’s mind – long before his arrest), then I don’t think Blagojevich would have the same complaint. However, the House clearly chose to base the impeachment on criminal conduct not yet proven or heard in a court of law.


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