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| - By Bob Barr As published in the Atlanta Journal Constitution Wednesday, January 28, 2009 A 17th century proverb warns us that “all’s fair in love and war.” Apparently taking this admonition literally, the Illinois Senate — deciding that since an impeachment trial is neither “love” nor “war” — has adopted a set of rules for the impeachment trial of Gov. Rod Blagojevich that are so patently unfair that his lawyers’ characterization of the proceedings as a “kangaroo court” has more than a ring of truth. Yes, as the senators leading the charge against the governor remind us, the proceedings constituting an impeachment trial are not per se criminal in nature, and therefore the requirements for fundamental fairness in proceedings designed to deprive a citizen of liberty do not necessarily apply. However, should not one also bear in mind that simply because a government body has the power to do something, does not make it right or proper for it to do so? The state legislature, however, taking the extreme measure of first passing articles of impeachment that consist of a laundry list of policy, political and pseudo-legal grievances against Blagojevich, and then adopting in the Senate rules for the impeachment trial that would make a Star Chamber proceeding appear fair, has chosen to take the low road rather than the high in addressing what clearly are serious allegations against Blagojevich. In so doing, the Illinois House and Senate have not shown the country the best the Land of Lincoln has to offer, but its seamier side. Keeping in mind that the criminal complaint lodged against the two-term governor last month in Chicago consists of nothing more than allegations of wrongdoing recited by an FBI field agent, is it not a legitimate question raised by the governor and his lawyers that basing an article of impeachment on such untested and unproven evidence raises an issue of fundamental fairness? Not only that, but the trial rules according to which the governor’s future will be determined expressly prohibit him from obtaining evidence regarding those charges if doing so “could compromise” the federal government’s investigation. Does this not render it virtually impossible for the governor to defend himself against those charges? Not only that, but the Senate’s rules give that body the power to deny the governor — by majority vote — any particular information or witness he might seek to subpoena in his defense. Unlike a trial conducted according to fundamental notions of due process and equal protection, Blagojevich’s ultimate fate can be decided by a vote of state senators, even if some of those senators were not present for the trial itself, so long as they simply “review” the transcripts! And what of the other underlying charges against the governor voted by the Illinois House? Many of the other charges are, by the explicit terms of the House report, based on evidence no stronger than newspaper stories. Even though the House impeachment report goes on for some 67 pages (many times longer than the articles of impeachment considered against either Richard Nixon or Bill Clinton), the actual, operative language against the state’s chief executive is stunningly weak. For example, the report takes the governor to task because his administration “demonstrated a lack of understanding of the procurement process” in procuring doses of flu vaccine. Hello! If we began listing government officials in either Springfield, Ill., or Washington, D.C., who render decisions involving millions or even billions of our tax dollars without “understanding the procurement process,” the list would be far longer than the verbose impeachment report against Blagojevich. Elsewhere in the impeachment report, we discover that Illinois House members base another impeachment article on the fact that the governor “routinely ignored [Freedom of Information Act] requests” and thereby exhibited “a pattern of keeping basic government information from the public.” That’s interesting. The vast majority of FOIA requests filed against federal agencies are met by “a pattern of keeping basic government information from the public.” If that standard were now to constitute grounds for impeachment, every modern president, especially the immediate past president, should have been impeached. I could go on, but further analysis of the actions of the Illinois legislature in dealing with its dislike for the state’s chief executive would be seen as piling on. The bottom line is, whether one likes, dislikes, loves or hates Rod Blagojevich, the process to which he is being subject in his home state is an embarrassment and should deeply offend all Americans who believe — as did our Founding Fathers — in fairness, due process and equal protections of our laws. Is it any wonder he has chosen not to be a party to such proceedings? • Bob Barr, an Atlanta attorney, former Georgia congressman and Libertarian candidate for president, served on the House committee that drafted articles of impeachment against President Clinton.
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