The Campaign Spot

The Blagojevich Provision in the Stimulus Bill

I have a nagging worry about the impending impeachment of Illinois governor Rod Blagojevich. While the criminal complaint against him filed by Patrick Fitzgerald is full of lurid detail, and the description of his comments on the audiotapes, etc., suggest he’s guilty as sin, he has not yet been convicted of any crime. In fact, he has not even been indicted. Under the Illinois state constitution, the state legislature can apparently impeach the governor for any reason; it doesn’t even have to be a criminal offense. But Blago is merely accused of a crime, and the legislature is concluding that an accusation of a criminal act is sufficient to remove him from office.

You don’t have to like Blagojevich to wonder if this is a dangerous precedent. Couldn’t some future governor be falsely accused of a crime, be removed from office before facing trial, and later be acquitted? Where would, say, (since we’re talking about Illinois) Gov. “Richard Kimble” go to get his public office back?

Anyway, Congress has given the Illinois legislature one more incentive to remove Blago from office as quickly as possible–in an unusual venue: The stimulus bill:

None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.

No federal cash until Blagojevich is gone? They’ll have him out by lunch.

UPDATE: From a reader:

A careful reading of the section you cite has the ever-important “or” stipulation, as well as other loopholes listed immediately after the Blago clause.  Nevertheless, doesn’t the wording of this clause create a Bill of Attainder, specifically prohibited by the U.S. Constitution?  I’d think the state of Illinois would have a good case to sue here, wouldn’t you?

ANOTHER UPDATE: Another reader writes in:

Impeachment in the federal system has never required such a judicial determination.  The point is that the Illinois Senate is itself conducting a trial and will be making its own independent determination of guilt.  If he is convicted, he will be removed from office.  This is the conviction for this purpose.  That is quite different from just removing someone based on an accusation.

It is a valid point, although it presumes that state legislators will approach the decision of guilt or innocence as fairly and objectively as a jury, who traditionally do not know the accused. In the case of impeachment of a governor, almost every state legislator has at least some familiarity with the accused, and is a political ally or a potential opponent or rival. Lawmakers have strong political incentives to seek or prevent the removal of a sitting governor . . .

Blagojevich has been loudly complaining that the impeachment effort is a farce, because he cannot call witnesses. It turns out, he can call witnesses; just not ones that federal prosecutors believe would interfere with their criminal case. Still, this limitation, coupled with the inability to cross-examine witnesses, illustrate how this process is different from a jury trial, and how that lower bar for removal from office could someday be problematic . . .

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