December 13, 2008
For the Sake of the Nation, Gov. Blagojevich Should Not ResignBy William A. Jacobson
Illinois Governor Rod Blagojevich has been charged with numerous counts of political corruption. The corrupt Illinois political system, which gave rise to our President-elect, must be exposed in a public trial - whether in criminal court or in an impeachment trial - with testimony under oath from leading public figures. This trial must take place before the next election cycle, so that the public has full knowledge of who paid whom, who scratched whose political back, and who looked the other way to advance their political careers. Since the only way to assure that there is a public trial quickly is if Gov. Blagojevich remains in office, for once Gov. Blagojevich should put the public interest ahead of his own, refuse to resign, fight attempts to strip him of his powers, and force the government to lay bare its case of public corruption in Illinois for all the world to see.
The details of the criminal charges against Gov. Blagojevich and his chief of staff have been widely reported. Gov. Blagojevich is charged in a criminal complaint filed by U.S. Attorney Patrick Fitzgerald with attempting to extort campaign contributions, jobs, and other payments in exchange for political favors on infrastructure projects, public funding, and most sensationally, the nomination of a replacement for Barack Obama's vacated Senate seat. Adding to the sensationalism is the alleged involvement of Tony Rezko in acting as an unofficial representative of Gov. Blagojevich with regard to Chicago Planning Board matters. Rezko was a longtime supporter of Obama, and Rezko's wife bought a contiguous parcel of land at full price simultaneously with the Obamas buying their Chicago home at below asking price.
The criminal complaint looks damning, but the complaint is only a set of allegations. While some of the proof is summarized in the criminal complaint, the evidence itself has not been disclosed publicly. Pieces of conversations may be taken out of context, and self-aggrandizing boasts may look worse on paper than on audio. Additionally, many of the people involved are not identified by name, and their testimony may shed light on the context of seemingly damning statements. The presumption of innocence applies even to Gov. Blagojevich.
What is clear is that Gov. Blagojevich's prosecution involves much of Illinois' political elite. One person who has been identified is Congressman Jesse Jackson, Jr., who is denominated "candidate no. 5" in the criminal complaint (the Congressman is not himself accused of wrongdoing in the criminal complaint). The speculation as to the true identity of others who were players (not necessarily wrongdoers) reaches into the inner circle of the upcoming Obama administration, which is loaded with Chicago-based supporters.
Despite the presumption of innocence, and some of the cryptic details of the criminal complaint, the calls for Gov. Blagojevich to resign increase by the hour. President-elect Obama, all Democrats in the U.S. Senate, and numerous Illinois politicians, have called for Gov. Blagojevich to resign for the sake of the people of Illinois. Earlier today, the Illinois Attorney General (whose family is knee deep in Illinois politics) filed an unprecedented motion to declare Gov. Blagojevich "unable to serve."
While couched in terms of protecting the public interest, many of these calls for Gov. Blagojevich to resign or be stripped of his powers come from people who would love nothing more than for Gov. Blagojevich to leave office quickly, take a plea deal, and go quietly to prison where he can join his gubernatorial predecessor. Such a result may be justice for Gov. Blagojevich's alleged crimes, but would leave the public in the dark as to the full extent of Illinois corruption and allow the ruling Illinois political class to continue business as usual.
There is no real negative to the public interest in Gov. Blagojevich continuing in office while the case works its way through the judicial system. As a matter of constitutional right, Gov. Blagojevich at least is entitled to the same rights as Gitmo detainees, such as hearing the evidence against him, cross-examining witnesses, putting the government to its proof, and presenting his alternative explanations of the evidence. Justice will not be served if Gov. Blagojevich is forced from office but later found not guilty. Anybody remember Bill Clinton?
There is no reason the judicial and impeachment tracks could not continue while Gov. Blagojevich is in office. The Illinois legislature could take away the Governor's power to appoint a successor to Obama, thereby removing such an appointment from any taint. There is no evidence that Gov. Blagojevich is incapable of implementing normal executive functions. As the most watched politician in the country, Gov. Blagojevich would not be in a position to engage in new criminal behavior. Since his political career would be over at the end of the current term, there would be no threat that he would extort campaign contributions. An under-indictment Gov. Blagojevich may be the most honest politician in Illinois.
There are numerous benefits to the nation from Gov. Blagojevich continuing in office while under indictment or while being impeached. The criminal complaint is about a lot more than appointing a successor to Obama's Senate seat. While Gov. Blagojevich is the named defendant, the entire Illinois system of pay-to-play, political back slapping, and seedy fundraising is on trial. While the evidence is substantial in the criminal complaint, it is almost certain that the U.S. Attorney's office has additional evidence presently and will develop further evidence as the case proceeds. If Gov. Blagojevich remains in office, the government will be under pressure to proceed quickly to trial, thereby ensuring that all this evidence as to the corrupt Illinois system is made public early in the Obama administration.
An impeachment proceeding would be even more engrossing than a criminal trial. Gov. Blagojevich must know where all the political bodies are buried, and is in the best position to lay the Illinois system bare. It may be hard for Gov. Blagojevich to attack Patrick Fitzgerald, but he should have a field day with the legislators in an impeachment trial.
The public is entitled to know as soon as possible if anyone in the Obama administration is tainted directly or indirectly by political corruption, and not just with regard to the appointment of Obama's successor. Once Gov. Blagojevich resigns, the government will not be under pressure to proceed quickly to a criminal trial and there would be no impeachment trial, and it may be years before the evidence is known, if at all. The public interest will not be served if corruption reaching persons in or affiliated with the Obama administration is not revealed until after the mid-term elections in November 2010.
Gov. Blagojevich continuing in office ensures not only that the government will proceed promptly, but also that there will be a public trial. A plea agreement, which certainly would include a resignation, may keep the evidence secret. The public may never know what it does not know. In the absence of a public trial, politics as usual will continue in Illinois and Washington.
Forcing the government to trial also will force public figures (some of whom are identified, some of whom are not yet identified) to provide evidence and testimony to the U.S. Attorney. The perils to politicians in such proceedings are demonstrated by U.S. Attorney Fitzgerald's other famous prosecution, of Lewis "Scooter" Libby, who was convicted of obstruction of justice and perjury. In light of the Libby prosecution, there is a high degree of likelihood that persons providing information to Fitzgerald or testifying under oath will do so honestly and forthrightly, or will refuse to provide evidence at all by asserting their right against self-incrimination.
In such a prosecution and investigation, we may actually get to know many of the dirty details of the political system that gave rise to our new President, and we may get to know which politicians are implicated or refused to cooperate. The public needs to know not only who paid whom, but who remained silent in the face of this corruption in order to get ahead. The public needs to know this information as soon as possible, not after additional future electoral cycles.
The only assurance that all the facts will become known and released to the public in a timely manner is if Gov. Blagojevich refuses to resign, fights attempts to strip him of his powers, and forces the government to make its case promptly at a public trial. If the criminal complaint is to be believed, this may be the only selfless act of public service Gov. Blagojevich ever performs.
William A. Jacobson is Associate Clinical Professor of Law at Cornell Law School in Ithaca, NY, and author of the Legal Insurrection Blog. The views expressed here are his own, and not on behalf of the university.