Legal Commentary

Beldar predicts that Blagojevich won't be impeached until convicted in court

By Beldar

This post may may make some people in Illinois mad at me. I'll have to risk it.

Prof. Ann Althouse is having fun ridiculing Illinois Attorney General Lisa Madigan's efforts both before the press and before the Illinois Supreme Court. Madigan is trying to persuade that court to effectively remove Gov. Rod Blagojevich from office based on an argument that he's "disabled" due to the allegations that have been made against him in the pending federal indictment being prosecuted by U.S. Attorney Patrick Fitzgerald. Earlier, Prof. Althouse wrote: "Given that ?conviction on impeachment? is one of the specified reasons for inability to serve, using this procedure as an alternative to the impeachment process looks like an abusive power grab." Prof. Glenn Reynolds adds: "I agree with Ann Althouse. The way you get rid of a crooked governor is via impeachment. Why play games here? If the case is so obvious, that shouldn?t take long."

I agree with both Prof. Althouse and Prof. Reynolds. Even though it would remove the reins of power from the hands of a crook, using the "disability" provision of the Illinois constitution in lieu of impeachment would be legally, politically, and intellectually illegitimate.

But picking up on Prof. Reynold's point about impeachment, the question about whether Blagojevich is "obviously crooked" becomes "obvious to whom?" and "under what standard of obviousness?"

That Blagojevich is a banal, petty crook has been "obvious" to anyone who cared to see such things long before he was indicted and arrested. Under a practical, common-sense standard, that should have been obvious to the voters of Illinois who nevertheless elected and then re-elected him.

But elections have consequences. Among them is the fact that once a crook is elected, constitutional niceties must be observed to remedy the situation.

With respect to Gov. Blagojevich's liberty, he's guaranteed all of the process due under federal law to anyone accused of such crimes, and Fitzgerald ? who wants a conviction that will stand up against any appeals ? will ensure that he gets it. But another consequence of Blogojevich's election is that the people of Illinois will have to be punished with him as their governor until political pressure can induce him to resign, or he's duly impeached and convicted by the Illinois legislature.

The people of New York elected as their governor a habitual liar and whore-monger, but he at least had the decency to resign when caught. The people of Illinois elected someone far worse, and one of the respects in which he is worse is that when confronted with his crime, he hasn't had the decency to resign.

To impeach and remove Blagojevich from office, the Illinois legislature would have to act without benefit of the actual proof of these allegations which Fitzgerald will use, in due course, in court. Legislators would have to display the political courage and common sense to say, in so many words: "Even though these are so far only alleged crimes rather than crimes proved in court to the satisfaction of a jury backstopped by trial and appellate courts, we are going to use the discretion granted us by the Illinois state constitution to accept a lower, lesser burden of persuasion and proof than do the federal courts in criminal matters, and we're going to hold Gov. Blagojevich responsible for these alleged crimes now." They will have to listen to Blagojevich's fervent, hypocritical pleas that he's presumed innocent until proven guilty, and then they will have to say boldly in response: "True, but that's in court, and this isn't a court. We're already sufficiently convinced that you're guilty."

The political legitimacy of such an impeachment would be, and should be, subject to close scrutiny ? by the voters who will, in due course, consider whether they wish to re-elect legislators who voted for such an impeachment. For that is the procedural check on legislatures which abuse their impeachment powers ? a theoretical check, but one sufficiently effective that their impeachment powers remain very rarely used, and almost never abused. (That's the realpolitik reason, and probably the only reason, why Nancy Pelosi hasn't tried to impeach Dubya, even with Democratic majorities in both the House and the Senate.)

The ability to discern right and wrong is so uncertain among the voting public of Illinois, however, that incumbent legislators can safely figure that they won't be punished at the polls if they join Blagojevich's pious pleas of "innocent until proven guilty." Indeed, they may still more fear a backlash (either at the polls or, more likely, from other corrupt Illinois politicians, of which there will be no shortage even when Blagojevich is history) from doing the right thing by voting for legislative impeachment and conviction.

Indeed, the harshest criticism that can be leveled at the people of Illinois is the old truism that people generally get the government they deserve. To get a government sufficiently principled that its legislators will have the courage to impeach and remove an elected governor who's not yet been convicted in court, the public must first have voted for honest legislators who act according to principle. I frankly doubt that enough of those have been elected in Illinois.

Thus, my prediction is that an insufficient number of Illinois state legislators will have the courage necessary to impeach Blagojevich before he's convicted in federal court. That's likely to be many months from now. And that, too, is a consequence of awful electoral decisions made by the people of Illinois. It's a pathetic, tragicomic circus, worthy of the ridicule of decent people when viewed from almost any angle.

Yes, it's terribly unfair to the minority of Illinois citizens who've been outvoted by peers who preferred the likes of Blagojevich and the ethically challenged legislators who won't yet impeach him. Those good people ? who number in the millions, but not sufficient millions ? have my sympathy and respect.

But everyone who voted for these clowns is going to be stuck with them, and they richly deserve the government they've got. For them, I have no sympathy and no respect.

Full post as published by BeldarBlog on December 14, 2008 (boomark / email).