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Jonathan Rauch Criticizes Blagojevich Impeachment Proceedings:

The column is here, at least for this week. Rauch is a very thoughtful and fair-minded columnist, and his criticisms are always worth taking seriously. Here's the start and the finish of the column:

Suppose, at least for the time it takes to read the next several paragraphs, that the ousting of Illinois Gov. Rod Blagojevich was a political railroading. Suppose the intention, whether out of malice or opportunism or both, was to overturn the 2006 election. What, actually, would that have looked like? And how different would it have looked from what happened last week?

I think that Blagojevich is probably a crook, and so does everyone else, so the question may seem academic. But it's not. Overturning an election is fundamentally antidemocratic and, in a democracy, potentially dangerous. When it needs to be done, the proceedings need to be objectively distinguishable from a railroading. In other words, the rules must be scrupulously fair. Otherwise, the process for removing corrupt politicians becomes, itself, indistinguishable from political corruption....

"Maybe one day it might happen to you," Blagojevich warned the state senators. He called his removal "a dangerous precedent that could have an impact on governors in Illinois and governors in other states."

He had a point. In the scramble to remove him, too many corners were cut. Not legal corners -- the law was faithfully executed -- but prudential ones. The press and the public were too quick to take a prosecutor's accusations at face value. The Illinois Legislature was too willing to act as an arm of the prosecution instead of an independent fact finder. And the political class was too cavalier about nullifying an election.

Whatever his wrongs, Blagojevich was right about this: The rules that removed him are not sufficiently distinguishable from a railroading, and they are wide open to abuse. We may find out, before long, that the door he was just shoved through swings both ways.

R&R:
Blago has a small point, but I disagree with the editorial. Blago was fired by the legislature. He was not sent to prison or something. He was removed from employment by the State of Illinois. Whatever name you call this process in the Constitution, it is fully appropriate that he get canned for his behavior.
2.6.2009 11:12am
Curt Fischer:

Overturning an election is fundamentally antidemocratic and, in a democracy, potentially dangerous.
[...]
The press and the public were too quick to take a prosecutor's accusations at face value.


These two lines do not add up, because they amount to charging the public with being "antidemocratic".

Maybe the public's desire was rash and unwise. Maybe the impeachment of Blago by the legislators was rash or unwise. But then the legislators' were a reflection of the will of the people! Hard to see how that is antidemocratic in any way.
2.6.2009 11:22am
Richard Aubrey (mail):
Did our polity anticipate firing elected officials before the end of their legal terms because of anything but crimes and misdemeanors?
Is an elected term now subject what amounts to a popularity survey?
We talk about the problems of Wall Street because so many CEOs have to worry about the quarterly report instead of long-term progress.
Is there an analogy here?
2.6.2009 11:30am
SeaDrive:
The whole point of a republic is that the voters put their trust in the legislature. Sometimes they betray that trust, of course, but I think it's false to trust in rules.
2.6.2009 11:30am
Uh_Clem (mail):
Impeachment is fundamentally a political as opposed to legal activity. If it was intended to be a legal proceeding, it would be entrusted to the judiciary rather than the legislative branch.

An unpopular executive can be fired by the legislature anytime when it's clear that it's time for him to go. I'd prefer the "vote of no confidence" mechanism of parliamentary systems, but impeachment is the only thing we've got.

Granted, as a legal proceeding the impeachment may have left something to be desired. As a legislative initiative, it may be the most popular thing the Illinois legislature does this year.
2.6.2009 11:30am
Anderson (mail):
How undemocratic for the people's representatives to act thus!

The rarity of impeachments suggests that they are not performed lightly ... at least, below the Presidential level.
2.6.2009 11:33am
Counterfactual (mail):
We wouldn't have had to 'scramble' to remove him if he was not acting incredibly irresponsibly in office by appointing senators when it was obviously proper to wait on doing so. What next? An article by Mr. Rauch criticizing the 'scramble' to arrest people shooting up a restuarant because if we cut corners to do that, how do we know that all defendants' rights won't be put in jepordy?
2.6.2009 11:35am
donaldk2 (mail):
It would be shameful for the people of Illinois, as represented in the Legislature, were seen as tolerating the kind of behavior evidenced by Blago's telephone conversations.
(not to speak of his manner of expression, which could have been created by David Mamet.)

He stiffed a hospital because it wouldn't pay him off. And it is a sure thing that he did this kind of thing habitually, and that there were many similar cases.
2.6.2009 11:36am
Steve:
Impeachment is always about what the people will accept, always. Rauch should think about the reasons why the people were just fine with the impeachment of Blagojevich and yet, by and large, they wouldn't have been just fine with the impeachment of Bush after the 2006 elections. Maybe the people simply see the two cases as distinguishable.
2.6.2009 11:43am
RT:
Blago wasn't impeached because there was proof he'd broken any law. Blago was impeached because he wasn't acting like a governor should act. The released portions of the tapes alone show that he was treating the senate seat like a commodity, rather than the public trust that it is; the burris appointment alone shows a remarkalbe blindness to common sense and propriety; and the decision to treat the impeachment trial like a publicity opportunity, rather than a serious constitutional proceeding, shows an incredible lack of respect for the people and their government.

At the end of the day, the state constitution gives the legislature the right to do this. If this was so undemocratic, why is there no clamor for either amending the constitution or instead voting out the legislators?
2.6.2009 11:55am
MartyA:
Before we leap to unfair conclusions, don't we really need to know how much the Senate seat appointment is actually worth to the Governor and how he is supposed to spread some of that around. This is, after all, Illinois.
Blago may have been discarded simply because he was greedy and reneged on a long standing revenue distribution agreement.
Alas, Obama now has to get rid of Fitzgerald (and, fast) and Fitz's replacement has to agree that Blago has suffered enough so that there is no further opportunity for discussion that might include Obama or Emanuel.
Does anyone doubt that 2 or 3 years ago, a bunch of Chicago/Illinois folks sat around a table and discussed Obama's candidacy and what information/documents would be withheld and why? Isn't it likely that both Blago and Emauel were at that meeting?
2.6.2009 11:56am
RPT (mail):
"MartyA:

Does anyone doubt that 2 or 3 years ago, a bunch of Chicago/Illinois folks sat around a table and discussed Obama's candidacy and what information/documents would be withheld and why? Isn't it likely that both Blago and Emauel were at that meeting?"

No doubt Cheney and Addington have the NSA surveillance records of this meeting. Ask them. Cheney has made it clear he intends to remain active in national politics; he can actually see the terrorists from his front door!
2.6.2009 12:03pm
Sarcastro (www):
Elections are just democratic railroading!
Court cases are just railroading by jury!
Life is just railroading by God!

And don't get me started on trains!
2.6.2009 12:05pm
Muskrat:
Rauch weakens his case when he says Blago's appointment of Burris was "...a perfectly respectable Senate appointment. No corruption or impropriety at all."

The appointment was a train wreck, a PR stunt, and an insult to the people of Illinois. The fact that Burris himself is honest is beside the point. The decision to make any appointment at all in the midst of a scandal about trying to sell the seat was a terrible idea. To take such a serious step in Blago's patented off-the-cuff, governance by press conference manner was the act of a man coming unhinged. As such, it was a strong argument in favor of rapid action by the legislature. For Rauch to try and pas it off as a perfectly legitimate choice shows he doesn't understand the situation.
2.6.2009 12:06pm
Sarcastro (www):
MartyA is right, though I think he could go further.

Does anybody doubt this meeting took place in the past, deep beneath Kenya, with Vampire Evis presiding, and that Vince Foster was the agreed upon sacrifice to the Dark God Nyarlthotep?

That's the way they roll in Chicago, you see. And if you disagree, your just another Obamabot. And by Obamabot I mean a literal android created by Obama.

All I'm saying is Obama has his father's eyes...
2.6.2009 12:11pm
David M. Nieporent (www):
He had a point. In the scramble to remove him, too many corners were cut. Not legal corners -- the law was faithfully executed -- but prudential ones. The press and the public were too quick to take a prosecutor's accusations at face value. The Illinois Legislature was too willing to act as an arm of the prosecution instead of an independent fact finder. And the political class was too cavalier about nullifying an election.
The problem with this argument is that 'Blago' refused to participate in the proceedings at all. Of course they took the accusations at face value; he never tried to refute them. If he had put on a defense -- hell, even if he had just come forward at the impeachment trial and denied them -- then they could have engaged in fact-finding. But when he thumbs his nose at the entire process, they're not going to go out and try to hunt down evidence of his innocence.

Plus, as people have said: it's an impeachment, not a criminal trial. How long is the state supposed to last with a governor under that kind of cloud, such that every act of his was tainted? (Of course, the country survived even though the Clinton impeachment dragged on, but Clinton's impeachable behavior didn't call into question every official act he took as president.)
2.6.2009 12:16pm
Calderon:
I'm basically in agreement with RT on this one. Also, during the impeachment hearing, Blago could have tried to defend himself but instead was out making pleas on daytime television. If you refuse to defend yourself, have you really been railroaded?

The only real issue here is restrictions on calling witnesses. I have to admit I'm not quite sure what the point is of restrictions on discussing evidence in a criminal case (with Brady obligations and open record laws) AFTER the indictment is filed. And even then, the problem was that Blago didn't really try.

As for Rauch's bottom line question as to what a railroading would look like, I think a proceeding that relied on hearsay and the absence of real evidence would be much more of a railroading than Blago's impeachment. Using someone's own admissions against them doesn't strike me as much of a railroading, especially when the impeachee doesn't bother to explain those admissions.
2.6.2009 12:19pm
resh (mail):
What did that fellow with the Hat and Beard say...

"I hope I am over wary; but if I am not, there is, even now, something of ill-omen, amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth, and an insult to our intelligence, to deny. Accounts of outrages committed by mobs, form the every-day news of the times. They have pervaded the country, from New England to Louisiana;--"
2.6.2009 12:20pm
Chris 24601 (mail) (www):
"[T]he door he was just shoved through swings both ways." That sounds like legislatures will be installing officials, as well as removing them...

FWIW, I'm not convinced that the railroading-will-become-common reductio is so bad; at worst it makes us sort of like a parliamentary system, which hasn't been an unmitigated disaster for most of the world, I think.
2.6.2009 12:27pm
c.gray (mail):
I live in Springfield, IL. I read the article at breakfast this morning.

When I got to this part:


And the political class was too cavalier about nullifying an election.



I almost spit up my coffee. Impeachment is _hard_. Its so hard that Blago is the first governor in Illinois history to be impeached. This is in a state where 3 of his 7 predecessors wound up in prison.

My advice to future Governors who want to avoid being "railroaded" like Blago? Don't ask your subordinates to hold up reimbursements to a Children's Hospital because an administrator has failed to give you a $25K "campaign contribution"...especially when you know you are under federal investigation for corruption and your offices might be bugged.
2.6.2009 12:31pm
Josh K (mail):
For a minute I thought we were talking about former Washington National's closer Jon Rauch, that would have been amusing.
2.6.2009 12:41pm
Dave!:
I think JR is way off base. First, as others have pointed out, the legislature is/was acting in line with the will of their constituents in a duly constitutional process. I suppose you could argue that the most "democratic" process would be a recall, ala Gray Davis in California, but that is subject to the same media "railroading" that JR claims Blago fell victim to.

Here's the thing. As a citizen of Illinois, I supported the impeachment because of the "evidence" that was presented on the tapes to the public and the legislature. But here's the rub--even if the entire tapes exonerated Blago from criminal activity as he claimed, I would still support the impeachment. Blago had a habit of ignoring the will of the voters, of being adversarial with the legislature to the point of making our state government ineffective, and he was a media whore who took no concrete steps to defend himself, instead enjoying his new found celebrity. That's not what I expect from my governor. If we had a recall process in IL, I'd have voted to recall him. But we don't, so I didn't have to: my representatives did it for me.
2.6.2009 12:45pm
Melancton Smith:
Sorry, but you are way off. We, the People, of IL were calling for a Recall law specifically due to Blago even before Fitz's presser. The elected representatives haven't been willing to risk giving the people that power.

Thwarted in our attempts to get Recall, we had been pushing for impeachment.

The people got what they wanted. Blago apologists, especially those on the outside looking in, can keep their worthless two cents.
2.6.2009 12:49pm
CDU (mail) (www):
I almost spit up my coffee. Impeachment is _hard_. Its so hard that Blago is the first governor in Illinois history to be impeached. This is in a state where 3 of his 7 predecessors wound up in prison.


This may reflect that impeachment is difficult, but I think it also reflects the fact that Blago wasn't impeached simply because he was corrupt. Previous Illinois governors have been corrupt and have managed to ride out their terms in office. Blago was impeached because even before this he had already alienated everyone who was in a position to offer him support when these allegations came to light. If you've spent the past few years pissing people off, don't be surprised when nobody steps up to defend you.
2.6.2009 12:56pm
VincentPaul (mail):
Since Illinois's General Assembly couldn't be bothered to impeach let alone convict George Ryan (all six Willis children were incinerated), I am amazed that it found it necessary to do so (and in timely fashion) to Blago.
2.6.2009 1:05pm
Perseus (mail):
If one thinks that the Illinois Legislature "was too willing to act as an arm of the prosecution instead of an independent fact finder," then it seems to be more of a case of the legislature "drawing all power into its impetuous vortex," that is, it's a failure in the separation of powers. That would make it more antirepublican than antidemocratic since the separation of powers was designed in part to restrain the majority.
2.6.2009 1:09pm
Randy R. (mail):
David: "If he had put on a defense -- hell, even if he had just come forward at the impeachment trial and denied them -- then they could have engaged in fact-finding. "

Exactly. You can't very well complain about the process when you don't participate in the process.
Furthermore,the legislature is elected by the people, so it's hardly undemocratic.

If The People demanded a special election (assuming you can do that in IL), and they voted him out of office early, would Rauch consider that undemocratic as well?
2.6.2009 1:21pm
Sammy Finkelman (mail):
JR> Suppose the intention, whether out of malice or opportunism or both, was to overturn the 2006 election. What, actually, would that have looked like? And how different would it have looked from what happened last week?

-----------------------------------------------

It wouldn't have gotten a 59-0 vote. Or even 2/3.

It is the large supermajority - plus an unwritten rule that this should not be done merely because a Governor is unpopular with those in the legislature - that prevents casual impeachments.

It is more of an ethical than a legal restraint, but it matters, and cuts the number of legislators who might be willing to impeach even further.

We saw that happen in 1868 in the U.S. Congress. Andrew Johnson was not removed as President because a few senators did not feel right in doing so, even though they were with the Radical Republicans in a lot of things.

Of course the proceeding was not what it should have been. They were taking the transcripts on faith. But even the recordings that were played would have really been enough to impeach. And Blagojevich didn't actually say anything was wrong with the transcript.

It is really, as then House Majority leader Gerald Ford said in 1970 when trying to impeach Supreme Court Justuice William O. Douglas - an impeachable offense is what a majority of the House of Represenatuves says it is. (and sufficient cause is wahtever 2/3 of the Senate agrees)
2.6.2009 1:22pm
alkali (mail):
If corners were cut, they may have been corners worth cutting. Under our system of government, in the absence of severe disability or provable crimes, there is no effective means of handling a situation in which a sitting president or governor is recognized as no longer practically capable of performing the duties of office. As Sandy Levinson was fond of pointing out over at the Balkination blog, the last couple of years of the Bush presidency arguably constituted a "constitutional crisis created by an increasingly politically illegitimate president who nonetheless retains his constitutional power to engage in all sorts of dangerous policymaking." In other words, neither Democrats nor Republicans really wanted Bush to be president at that point (likely for different reasons), but there was no effective means of keeping Bush from exercising power other than impeachment, which most agreed was not warranted. The situation with Blagojevich was far more extreme. Any system of government that would have allowed Blagojevich to continue as governor would be a broken system
2.6.2009 1:37pm
Dave N (mail):
I agree with almost everyone here that Jonathan Rauch is offbase. If we can believe USA Today, exactly seven governors have been impeached in U.S. history (John Rowland, the Governor mentioned in the linked article, resigned prior to impeachment).

The fact, as C.Gray mentioned upthread that three of the last seven governors ended up in prison (and now likely 4 of the last 8) shows that the Illinois Legislature has a high threshold of patience--but not when the state is being turned into a national laughingstock by a Governor who seemed intent on sullying his office with every official action.

In this respect, Governor Blagojevich's conduct was similar to that of Tennessee Governor Ray Blanton, who was pushed out of office three days earlier than expected because he was apparently selling pardons.
2.6.2009 2:01pm
Duffy Pratt (mail):
As several others have pointed out, it's fairly ironic to call the unanimous action of a Legislature undemocratic.

On top of that, impeachment is not the same thing as overturning an election. To overturn an election, the loser or the losing party should take office. That's what used to be possible when the person with the second most votes became president after a successful impeachment. But it doesn't happen anymore at the federal level, and I don't think Blago's republican opponent is now the Gov of Illinois.
2.6.2009 2:08pm
Michael Ejercito (mail) (www):

Did our polity anticipate firing elected officials before the end of their legal terms because of anything but crimes and misdemeanors?

Yes, which is why the authors of the Illinois constitution put in a provision that requires impeachment by the House and removal by two-thirds of the Senate. A minority of state senators could block the removal of an impeached official. This is another example of giving political minorities leverage in the system as well as maintaining checks and balances.

This is even more apparent in the U.S. Constitution, where each state gets two senators each. Thirty-four senators representing seventeen states with less than 8% of the population can block removal of an impeached official.
2.6.2009 2:20pm
Perseus (mail):
at worst it makes us sort of like a parliamentary system, which hasn't been an unmitigated disaster for most of the world, I think.

Perhaps not an unmitigated disaster, but the parliamentary system hasn't shown itself to be obviously superior either. And if people want a parliamentary system, I would prefer that they formally create one rather than manipulate the current system in a poor approximation of one.
2.6.2009 2:32pm
http://volokh.com/?exclude=davidb:
Sometimes it's tough to distinguish a "railroading" from a case in which the accused has absolutely nothing, nada, nilch, substantive to say on his behalf.

And this isn't a case, it's an impeachment.

Meanwhile, Sarcastro: one of your best ever.
2.6.2009 3:00pm
Repeal 16-17 (mail):
I know it might seem nitpicky, but the correct term is "removal" when referring to the result of the impeachment trial. "Impeachment" is like an indictment and "removal" is like sentencing.
2.6.2009 3:09pm
Roger Schlafly (www):
It would be shameful for the people of Illinois, as represented in the Legislature, were seen as tolerating the kind of behavior evidenced by Blago's telephone conversations.
If so, then the articles of impeachment should have explicitly said that he was being impeached for his telephone behavior, and the legislature should have listened to all of the wiretaps.
The released portions of the tapes alone show that he was treating the senate seat like a commodity, ..., shows an incredible lack of respect for the people and their government.
If so, then they should have heard witnesses testifying about whether or not Blago was really demanding cash for the senate seat.

I think that Fitzgerald and the Illinois legislature showed an incredible lack of respect for the people and their government.
2.6.2009 3:16pm
Sarcastro (www):
[http://volokh.com/?exclude=davidb I was worried no one got it.]
2.6.2009 3:16pm
ohwilleke:
I concur with David M. Nieporent. If Blago wasn't even willing to appear at his impeachment trial, why should anyone in the legislature vote to support him?

By failing to appear he disrespects the institution and the state constitution he was sworn to uphold. This is an independent basis for removing him from office, in addition to the underlying allegations.

It is not at all for professional disciplinary boards to remove someone from a profession for failing to cooperate with an investigation of them by the board. Why should the Illinois State Senate expect less.

The 5th Amendment doesn't apply in a civil or political context. If you aren't willing to address the charges against you on the merits and under oath, it is entirely appropriate to assume that you are guilty.

________________________________________________________

It is also worth noting that the U.S. provides extraordinary job security for elected Governors and Presidents.

There are only a handful of countries where a directly elected President is head of government. In most countries, a simple loss of a parliamentary majority can produce a between election removal of the head of government from power. Even in Illinois, it takes far more than that to remove a Governor.
2.6.2009 3:30pm
Jim Rhoads (mail):
It's not like he was beheaded or sent to the dungeon after he was removed as in jolly old England in times of olde.

Besides, every one of those Illinois representatives and senators will be running for reelection at the end of their respective terms. If the electorate thinks they overstepped their bounds in removing this raving fool, it can elect others in their place. I will bet, though, that no one runs against any one of these legislators on the "pro Bloggo" ticket.

Mr. Rauch is clearly off base. He must be a lawyer, not a politician.

In effect, all but one of Illinois's elected legislators told Bloggo what Ayers told Chamberlain after WWII reached England, quoting Cromwell:


You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go.
2.6.2009 5:20pm
Jim Rhoads (mail):
I should note that Ayers was a long-time personal friend of Chamberlain's when he delivered his famous demand.
2.6.2009 5:23pm
Dave N (mail):
Ah, so Ayers was someone Chamberlain knew well, and not just someone who lived in the same neighborhood.
2.6.2009 5:43pm
Michael Ejercito (mail) (www):

And if people want a parliamentary system, I would prefer that they formally create one rather than manipulate the current system in a poor approximation of one.

A two-thirds requirement to remove an official is designed to make such a thing difficult and rare.
2.6.2009 8:03pm
Feldman:
As an Illinoisan and a Democrat, it's clear to me that Blagos removal was the will of the people. The Illinois people haven't felt so respected by our State legislature in awhile. They voted unanimously in both houses(except for his sister-in-law). You don't get that kind of vote, unless you deserve to be removed.
2.7.2009 9:03pm
Feldman:
As an Illinoisan and a Democrat, it's clear to me that Blagos removal was the will of the people. The Illinois people haven't felt so respected by our State legislature in awhile. They voted unanimously in both houses(except for his sister-in-law). You don't get that kind of vote, unless you deserve to be removed.
2.7.2009 9:03pm
markm (mail):
The affront is to the rule of law, not to "democracy" or the people of Illinois. Blago was clearly incompetent, but the legislature has long declined to submit any method for removing an incompetent governor to the people as a constitutional amendment.[1] So, they were stuck with a method for removing criminals - which would have been fine if they had followed any of the customs of criminal trials, such as presenting evidence rather than Fitzgerald's extracts from the evidence.

[1] Yes, I'm aware that the federal constitution has the same lack, and we'll suffer for it someday, if we haven't already. States can run recall elections, but a national recall election is probably unworkable. Way back in 1973, I thought Congress should propose an amendment adding gross incompetence to the grounds for impeachment. If that had been in place, they could have cut about a year out of the Watergate investigation and impeached Nixon on his own claims to have been unaware that, in his basement, his employees were plotting crimes and executing them using bags of $100 bills from his own campaign funds. If you didn't believe him, he was a crook, if you did, he was grossly incompetent...

Not that Nixon was actually incompetent or the most criminal President in my lifetime.
2.10.2009 6:14am

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