A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Friday, January 23, 2009

I Think Blagojevich May Be Getting Screwed, Somewhat

Never want to kick a man when he's down, but there is something hysterical about a politician calling a press conference to announce that the system under which he is being prosecuted is unfair.

Now Illinois Governor Rod Blagojevich is not complaining about the criminal justice system (yet), he's complaining, loudly, about the administrative rules governing his impeachment. He wants the legislature to change the procedural rules so that he can call as witnesses everyone except Jesus, Moses, and Britney Spears (I think). He is doing the classic "I'm going to drag everyone who ever spoke to me into this and embarrass as many people as I can until either the system apologizes to me or I have a nervous breakdown."

So I read the rules.

Blago says he can't challenge the evidence.

Rule 8(b) The House Prosecutor or the Governor or his counsel may object to the admission or exclusion of evidence. Any objection must be addressed to the Chief Justice. No objection, however, may be made against all or any part of the House impeachment record filed by the House Prosecutor with the Secretary.

Now I don't know if he's right about this, because I don't understand what this rule means. Who wrote these?

Blago also says he can't subpoena the witnesses he wants to appear. I think he's right.

Look at this crap:

Rule 15(f) "It is never in order to request a subpoena for the testimony of any person or for the production of documents or other materials from that person if the U.S. Attorney for the Northern District of Illinois has indicated that the person's testimony, or inquiry into the subject matter of that person's testimony, could compromise the U.S. Attorney's criminal investigation of Rod R. Blagojevich, as exemplified by, but not limited to, exhibits 10, 24, and 30 of the House impeachment record, unless the U.S. Attorney subsequently indicates otherwise.

So the U.S. Attorney has to bless Blago's right to call a witness? No question that requires the impeachment be stayed pending the outcome of the criminal trial.

What fascinates me is that these rules were drafted specifically for the Blago impeachment trial. Read them. These are not rules of procedure for impeachment, these are rules governing the impeachment of Blago.

The problem is that Blago has no friends, and now, no lawyers. His criminal lawyer resigned because he can't control Blago and his big mouth.

Blago's biggest problem? His message gets lost in the messenger.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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  1. You forget what's at stake here: the continued presence of this man in office. This is not a criminal proceeding, its a political process. Under the Illinois Constitution, the governor serves subject to impeachment by the Illinois House and "conviction" by the Illinois Senate. It's meant to be a political safety valve when the governor is no longer fit to lead (is there any doubt about that?) These legislators, in turn, serve subject to the will of the people. Maybe you'll say this is a process subject to abuse: a partisan legislature impeaches a governor of the other party for partisan reasons. Call me when that happens.

  2. Listen, I think Blago should resign. But I look at these rules, which were drafted specifically for his impeachment, and he's right on the point of limiting his ability to subpoena witnesses. There is no due process (which is required in civil and criminal proceedings) when a defendant has to get the permission of the prosecutor in his criminal case in order to subpoena witnesses in his administrative proceeding.

    That's all I'm saying. Blago is a disgrace. He needs to go. The process of impeachment though, seems ripe for appellate review.

  3. Clearly, he won't resign, so what then? Due process protects a person's right to life, liberty or property. Which one is at stake here? The office of governor is not the "property" of Rod Blagojevich-- it is the property of the people of Illinois. Rod Blagojevich, the man, has no "right" to continue serving as governor. Any "right" he has to the office takes a back seat to the right of the people to remove him through their elected representatives. This is about all the people of Illinois, not one of them. His criminal trial is another story.

  4. Actually, due process is based on two premises: Notice, and the right to be heard. Blago's right to be heard is apparently trumped by the U.S. Attorney haveing to "bless" the calling of certain witnesses.

    I disagree that the Office of Governor is not the property of Blago. It is for the term he was elected. Of course the people have the right to remove him, but creating rules specifically for his trial and specious rules at best, is a little troubling.

  5. Anonymous8:32 AM

    Impeachment is a political process, not a criminal or civil trial. It is essentially a political fight between two branches of government.

    That whole, pesky separation of powers thing should keep the courts out of it (except that the rule calls for an appeal to the chief justice???)

    If Blago is getting screwed, it's screwed by the political process, not the criminal justice system. I have little sypmathy for a politician being screwed by other politicians.

  6. Notice and the right to be heard is the result of the due process clause, not its constitutional basis (loss of life, liberty or property). Anyone who thinks Blagojevich has a property right to the office deserves him. We'll happily send him to Florida! Yesterday's Chicago Sun Times has a good description of Blagojevich's refusal to participate in the process of making the rules, challenging evidence or calling witnesses. You can't challenge a process as unfair when you absolutely refuse to engage in it.

  7. Another PD, I too have no sympathy for a politician getting screwed by a political process. Lawmakers create rules and statutes that they believe will never apply to them. When they or their family are affected, they scream "unfair!"

    Shapespeare, I think Blagojevich has a right to fight to keep the office (although again, I think he should resign) and that right should be determined in a fair process. You say you can't challenge a process as unfair when you absolutely refuse to engage in it and you are right, but the requirement that he get the approcal of the US Attorney to call certain witnesses, is absurd.