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Sunday, December 14, 2008

Gov Blagojevich

The situation in Illinois calls for comment. I have three points.
  1. Prosecutors should never be out trash talking.

  2. The idea of the Illinois AG going to the State Supreme Court is a bad idea.

  3. While there is a lot of corruption in Illinois, appointments always include a certain amount of log rolling, and that should not be criminalized.
Going to the first point, I find myself going to The New York Times, where Barry Coburn talks about US Attorney Patrick Fitzgerald's strong comments about indicted Governor Rod Blagojevich. (A hat tip to Dan Kennedy of Media Nation.) Mr Coburn then goes on to say:
Any prosecutor at the center of a firestorm of publicity may find the temptation to grandstand hard to resist, but these comments are, to put it mildly, remarkably inflammatory. Mr. Fitzgerald’s expressions of revulsion, use of hyperbolic rhetoric and implicit assertion of his personal belief that the charges have merit clearly run afoul of the rules. It is one thing for a prosecutor to publicly condemn a defendant’s actions and assert a belief that he did what he is charged with doing after a trial and conviction, but another to do so before he is indicted by a grand jury.
I think that Mr Coburn is correct and Mr Fitzgerald was out of line. If Mr Fitzgerald can't stop trash talking, maybe he should switch to some sport--maybe find an adult soccer team to play on.

Regarding the second point, why is Illinois Attorney General Lisa Madigan going to the State Supreme Court, asking the Justices to declare:
Blagojevich unfit to serve, likening the corruption scandal to a debilitating illness as she ramped up pressure on the governor to resign. The move seeks to hand power over to the lieutenant governor.
We leave too much in the hands of judges and justices and this shouldn't be added to it. Remember how many were outraged at what they thought was the US Supreme Court giving the 2000 election to Governor Bush? Here is a case of a cabinet member trying to bypass the State Legislature to remove a sitting Governor. Removal is the job of the State Legislature--period. Her argument that this is a "debilitating illness" would work if Illinois has a procedure for dealing with "debilitating illness," but this isn't an illness. It is an accusation of a crime.

For those interested in more details on the Illinois AG's actions, here is something from Professor Eugene Volokh.

Third, we have the question of if exchanging favors for the now empty Senate Seat is a crime. In raising this issue, I am not suggesting that Governor Blagojevich is not guilty of other high crimes and misdemeanors. But, back to Professor Volokh we have this very issue raised. The good Professor quotes this from the Prosecution:
Rod Blagojevich has been intercepted conspiring to trade [his decision to appoint someone to] the senate seat [vacated by the President-elect] for particular positions that the President-elect has the power to appoint (e.g. the Secretary of Health and Human Services).
He then goes on to note:
But my sense is that political deals of the "I appoint your political ally to X and you appoint me to Y" variety are pretty commonplace, though perhaps done with more subtlety than seemed to be contemplated here. Should these deals indeed be treated as criminal bribery? Have they generally been so treated? What if the deal didn't involve appointment-for-appointment swaps but vote-for-vote swaps or vote-for-appointment swaps — e.g., "if you vote the way I want you to vote, I'll vote the way you want me to vote" or "if you vote the way I want you to vote, I, the Speaker of the House, will make sure that you're appointed to the committee chairmanship you always wanted" or "if you solidly support me during this Congress, I'll appoint you to the Cabinet"?
This is a serious question. I wouldn't wish to see the ability of government officials to cut deals criminalized. We need to draw a line or we won't get the People's business accomplished.

Finally, there is this point. I don't often find reason to praise Senate Majority Leader Harry Reid, but this is one such moment. It was assert in The Washington Post that Senator Reid, in a letter to Governor Blagojevich said:
Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.
Let us all hope it all turns out well.

Regards -- Cliff


Anonymous said...

Good presentation, thoughtfully given. Thank you.

You are, of course, wrong on the first point, given the circumstance. Fitzgerald's objective seems to have been to block what could have become an Illinois crisis that would have involved a, by then, sitting US Senator.

You are correct on the second point. Stretching a legal proceeding to cover something not intended by the law is generally bad.

You are simply wrong on the third point. Criminal activity should be ... well ... criminal.

Blagojevich seems to have modeled himself after a combination of the Sopranos and the Three Stooges.

The New Englander said...

Mr. Deming,

As for the third point, I don't think Cliff was advocating criminal activity (at least, I didn't read it that way)..

..instead, some degree of logrolling (I'll do this for you if you'll do that for me..) is as old as politics itself.

Gov. Patterson of NY may not be on tapes throwing the f-word around and talking about how a Senate appointment can help him directly, but I'm sure he realizes this -- a Caroline Kennedy appointment would mean tons of star power and political momentum for him in 2010when he runs for Governor. Would he seriously consider someone named, say, Caroline Deming, who had never before held public office?

I doubt it.


The New Englander said...

Oh, one other point I should've included with the Gov. Patterson post -- look what happened in Delaware with the appointment to fill Biden's seat -- looks like a pretty clear set-up job for Biden's son to inherit that seat next go-around...I know, I know, not as slimy or as profane as Gov. Blagoyevich, but in its own way its' the same principle at work