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In Re: The Matter of Rod Blagojevich (Dissenting)

In re: The Matter of Rod Blagojevich, with all due deference to my esteemed colleague, Justice Eugene Robinson, I respectfully dissent. I concur in Justice Robinson’s finding that the evidence would support a conviction of Gov. Blagojevich for engaging in a criminal conspiracy with his barber “in the matter of his menacing mop.” I further concur in his determination that the citizens of Illinois “deserve better than to be governed by a late-night punch line.”

However, Justice Robinson’s conclusion that “it’s not immediately apparent what crime Blagojevich has committed except being something of a buffoon and a jerk” reflects an unfamiliarity with the law and facts underlying this case. First, the record makes clear that Gov. Blagojevich is not “something of a buffoon and a jerk.” This court, in my view, should take judicial notice of the fact that the governor is a buffoon and a jerk. See, e.g., Good Morning America, The View, The Today Show. Second, the evidence, albeit not fully developed at this stage in the litigation, appears entirely sufficient to support the conviction of the governor -- in the court of public opinion, the Illinois state senate and a criminal proceeding.

Justice Robinson’s depiction of the most incendiary charges against Gov. Blagojevich --that he attempted to sell the Senate seat made vacant by the election of President Barack Obama -- omits relevant evidence. See., e.g., Final Report of the Special Investigative Committee (hereinafter, Final Report).

It is true, as Justice Robinson notes, that Gov. Blagojevich’s alleged attempt to sell the seat was not consummated by the time of his arrest. It is further true that some of the evidence against Gov. Blagojevich, in the form of transcripts of his wiretapped conversations, may be mere political chest-thumping.

Justice Robinson’s assessment, however, conveniently ignores other, far more damaging comments. The benefits that Gov. Blagojevich discussed securing for himself in return for the Senate appointment include, inter alia, an ambassadorship; a cabinet appointment; or a lucrative position with a private foundation, at a salary of $250,000 to $350,000. This is hardly, as Justice Robinson implies, simply “known as politics.”

Moreover, as Justice Robinson surely recalls from his first-year criminal law class, a conspiracy -- the “darling of the prosecutor’s nursery” -- does not require commission of the underlying crime. There needs only to be agreement and intent to achieve an unlawful objective, combined with commission of a single overt act by any one defendant in furtherance of the conspiracy.

In the instant situation, the Final Report offers ample evidence that Gov. Blagojevich was “aware the plans he was considering with regard to the Senate vacancy were illegal and improper” and that he took numerous acts to put them in play. For instance, the criminal affidavit filed in support of Gov. Blagojevich’s arrest outlines how he directed Deputy Governor A to draw up a list of items that he might demand in exchange for the Senate seat and instructed that the list “can’t be in writing.” When Gov. Blagojevich told Fundraiser A that he wanted to see immediate campaign contributions from Senate Candidate 5, the governor instructed him, “You gotta be careful how you express that…” The day after The Chicago Tribune reported that the governor’s conversations were being tapped, the governor instructed Fundraiser A to “undo” that approach, suggesting his understanding of the possible criminal consequences of his acts.

Furthermore, Justice Robinson’s assessment ignores evidence of illegal acts by Gov. Blagojevich having nothing to do with the Senate seat. These include Gov. Blagojevich’s alleged attempts to condition state aid to the Tribune Company on the firing of members of the Tribune editorial board who had been critical of the governor, and efforts to obtain campaign contributions in exchange for state contracts or appointments. For example, discussing his plans to announce a $1.8 billion project for new lanes on the Illinois Tollway, the governor said he wanted to seek $500,000 in campaign contribution from Highway Contractor 1. “I could have made a larger announcement but wanted to see how they perform by the end of the year,” the governor said, apparently referring to campaign donations. “If they don’t perform, [expletive] them.”

“I question whether the tapes are enough to put him in jail,” Justice Robinson concludes. Time will tell which of us is right. For the time being, for the reasons detailed above, I respectfully dissent.

By Ruth Marcus  | January 27, 2009; 10:06 AM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Next: In Re: The Matter of Rod Blagojevich (Continued)


Hon. Justice Marcus,

I applaud your for your well-considered opinion, and join in your dissent.

It would appear that Justice Robinson's opinion suffers from too sharp a focus on too few of the salient facts in this case. In fact, upon first reading I assumed this was a critique along the lines of "A Modest Proposal," as Justice Robinson is not often swayed by spurious arguments. Time will tell.

Posted by: mikeinmidland | January 27, 2009 10:51 AM | Report abuse

Justice Robinson is a kind man. That's to his credit. But Justice is supposed to be a blind lady, not a kind man. Robinson's points may well be at issue in a criminal trial, but not in an impeachment trial. Bush and Cheney pushed this same idea that they committed no crimes, therefore, they were fine. The standards for public office are higher. Reading those transcripts, Blagojevich was so far over the line that I expect his impeachment shortly. I don't think Ruth Marcus is a blind lady, but she's sure on the money with this call...

Posted by: jnardo | January 27, 2009 11:20 AM | Report abuse

A really stupid and pointless column.
Nothing else going on ? You need to jump on the silly hair bandwagon?

You perhaps have nothing at all to say about more problems in Gaza? Women and children there? But of course you wouldn't.

Posted by: whistling | January 27, 2009 11:21 AM | Report abuse

What was shown the public in those tapes was nothing about proof only about a loud mouth fool that can say it was just talk. Unless Fitzgerald can prove the walk side of it, he has nothing.

Justic Marcus, you might want to think about innocence before proven guilty and how Fitzgerald shaped public opinion with his inflamatory remarks that was very personal and that implied guilt. You also might think about the length of time it has taken Fitzgerald to bring this to trial. In fact, shortly after his statements, he was unable to present a strong enough case for trial and was forced to request the extension he is now working under.

There is much pretrial prejudice created by Fitzgerald as also the timing of impeachment, allegedly for activies that were precipated by the Governor. Activies that were no different before Fitzgerald than after Fitzgerald. Since no proof has been given to back up Fitzgeralds statements there can be no impeachment based on that. So why impeachment now instead of before Fitzgerald and when those things were happening.

My bottom line is only to point out unless Fitzgerald comes out with an extremly strong case, there may be a problem getting a conviction due to the rush to assign guilt by Fitzgerald, the Illinois General Assembly and the public. I believe Fitzgerald statements and the impeachment could be construed by many as an intent to shape and form public opinion as guilty without the benefit of trial. It doesn't take but a few symphanizers on a jury to turn conviction into a free pass. This situation could get more bizzare before this is all over.

Posted by: 1ken | January 27, 2009 11:51 AM | Report abuse

Hey Justice Marcus!, ... that Harvard Law degree sure came in handy in challenging Justice Robinson's opinion. Impressed.

Posted by: IpiTombi | January 27, 2009 12:22 PM | Report abuse

"You perhaps have nothing at all to say about more problems in Gaza? Women and children there? But of course you wouldn't.

Posted by: whistling | January 27, 2009 11:21 AM "

What the hell is your problem, whistling? Gaza will be there tomorrow, warts and all. It's not going anywhere. But maybe some of us would like to spend a few minutes talking about any of the myriad other issues out there that deserve our attention.

Posted by: simpleton1 | January 27, 2009 12:30 PM | Report abuse

As related earlier, the people of the United States are cynical of all politicians.

I don't particularly care for Blago as related in an earlier thread, "this guy (Gov. Rod Blagojevich)is a walking microcosm of everything that is bad about American politics..." With that said, there isn't any proof remotely rising to the level of a "blue stained dress", so why again is the legislation moving to impeach this guy? Is he just a light skinned black man and therefore "due process" does not apply?

So what he comes off like the Sopranos, he's just overt with corruption as opposed to the rest of the covertly corrupt politicians. Deep down all of us have reservations about every politician - don't you?

For instance, the current bailout addendum is full of things that aren't going to the people of the United States. It's full of pet projects that every mega business that is failing is getting or will ask for - hundreds of millions of dollars courtesy of you and I, the tax payer.

Bottom line, if it isn't going to put money in their pocket or benefit them somehow it isn't going to get passed. Blago just lacked tact with his request so everyone just get over yourselves...

Posted by: czlong | January 27, 2009 12:37 PM | Report abuse

The only difference between Gov. Blagojevich and David Patterson is that Blagojevich's office was bugged. Show me a single person who was asked to trade anything for that office. Oh, you can't? That's right -- they don't exist. End of conspiracy.

This was a politically motivated prosecution from the start. Old Fitzie thought he could smear some mud on Obama by taking down one of his hometown politicians. But Fitzie shot his wad too soon, and he got nothing -- ZERO -- on Blagojevich. Maybe he should have waited until the Gov actually committed a crime. But that would be too late for any of the mud to stick to Obama. Hence Fitzie's laughable press conference where he posed as Superman rooting out the evil-dooers.

You know, despite our obsession with public humiliation of those we don't like, we are still a nation ruled by laws -- not by partisan prosecutors. Ms. Marcus is normally right on target, but the reality is that what Blagojevich was doing is normally known as politics. Show me a crime, Ms. Marcus...

Posted by: jerkhoff | January 27, 2009 12:55 PM | Report abuse

I want to thank Ruth Marcus for the reality check. Blago knows that his job is gone because the Senators voting to convict on the impeachment charges will have read the evidence and have the sense to know that what the governor did (or clearly set in motion to do) was malfeasance. No amount of explanation from Blago can change the fact that he clearly wanted personal gain from his power to appoint a public servant.

Blago's present media blitz is instead intended, in my opinion, the try to taint the minds of the public - the very public who will form the jury of his peers. He can cite Kipling and allude to Ghandi in the hopes that he will be seen as the victim. And the fact that Gene Robinson, for whom I have the most respect, appears to be falling for it is evidence of the power of Blago's personality.

What this man did was repulsive. And at the end of the day, there will be no doubt among reasonable minds. Let's not forget that the Senate seat was just one of the charges - there is also evidence of his "pay for play" methods with legislation and other state backing, including money for childrens' hospitals! Read the affidavit, read the transcripts; there isn't going to be an acceptable explanation.

Posted by: superchuck500 | January 27, 2009 1:02 PM | Report abuse

Dr. Ruth,

I'm not certain about Justice Robinson points; however, we did give one adminstration that was supposedly elected by the people eight years with no charges of impeachment. Although there may ultimately have been impeachable offenses, it would have been improper if the evidence was not conclusive.

I believe that Governor Blo deserves his day in court or we should rely on the court that has spoken, the people. And yes, Governor Blo has an impeachable hair-do.

Posted by: ronhamp | January 27, 2009 1:42 PM | Report abuse

It ain't over until the fat, not blind, lady sings. Unfortunately for the Governer, the singing occurred on the tapes. Soliciting bribes, not attempting to sell the Senate seat, is what counts here.

Posted by: Martial | January 27, 2009 3:50 PM | Report abuse

Justice Robinson showed his true colors when he found those Duke athletes guilty of rape based on the accusation of a women. Their real crime? They were white; their female accuser, black. Robibson is not to be taken seriously as he mumbles his clumsy way through the world of leftwing punditry.

Posted by: mhr614 | January 27, 2009 4:49 PM | Report abuse

ms marcus is wrong and not a legal scholar.m.o.has the right to control and give her opinion on what happens with her children's likeness and gov "howdy doody", has a right to a fair trial of his peers, this is not gitmo
ms marcus wrong on all counts.

Posted by: ninnafaye | January 27, 2009 6:15 PM | Report abuse

Many, many thanks for linking the Illinois investigating committee's report in your column.

While watching the governor's celebrity performance on "The View" I came away feeling very sympathetic for the governor -- as he wanted me and everyone else to be, of course.

Blagojevich's flair and panache in delivering his emotional central argument to The View's celebrity panalists, that he is "unfairly" not being allowed to present his side of the story supporting witnesses, and that therefore he is being denied the 'due process' that is the right of every American citizen, seemed to me to be more than reasonable.

Then I clicked on your link to the committee report, and started reading.

By page 10 of the committee's 78 page report I stopped reading and reflected on Blagojevich's glib View performance. If he's impeached, tried, and voted out of office as expected (and which I now firmly believe he deserves to be), he can always go out West to Hollywood, where he'll definitely make it big as an actor. He's got the skill, talent, and chutzpah to earn himself a bagful of money, and end up with a fancy house filled with those gold Oscars everyone out there covets.

Posted by: Punahou52 | January 27, 2009 6:23 PM | Report abuse

Justice Marcus:
You got it right the first time, i.e., devoting your column to the matter of the Sasha/Malia Dolls. Gov.Blago will be fine.
So will the Obama girls. Few columnists in this paper or any other take the time and effort to lobby for ordinary little girls who play with dolls. Thank you.

Posted by: martymar123 | January 28, 2009 7:31 AM | Report abuse

No, Ruth, you did not get it right...

Stop for just a moment and observe everything surrounding this investigation as if your next step might trigger a land mine.

No one knows how Fitsgeald could prosecute Scooter Libby for crimes associated with the investigation of who outed a CIA agent, and be content to never find out who outed a CIA agent. What we know is that he scheduled a press conference, a highly visible arrest, made allegations about crims he SAID would make Abraham Lincoln spin in his grave... then meekly asked for three months to put together an indictment. So the jury is out on Fitzgerald.

Further out, hiding in plain sight, is a still unexplained firing of nine US Attorneys because they would not go after democrats at the bidding of the republicans AND our DOJ - so we citizens have a queasy feeling about anything a politicized DOJ does now.

And there's the infamous prosecution and imprisonment of Governor Seigelman of Alabama, a case with collusion between local prosecutors and republican politicians republican operatives and our (now) untrustworthy DOJ. But wait... right on top of that, Eliot Spitzer is outed for visiting a prostitute he paid with his own money, using the Homeland Security Act, which we were told would never, ever be used on Americans... and after the huge press conference and allegations aired in public rather than court, and he was forced to resign, turns out he was not to be charged after all.

Now we got Bill Richardson, Govern of New Mexico under investigation by the same folks...

And on top of all of that, we get the big press conference, the allegation, the publicity, and the delay for Blagojevich.

Four democrat governs under investigation by the same politicized DOJ that fired US Attorneys for refusing to go along with their intent?

Would all the questions and revelations swirling around suggest to the really professional investigators that they make extra sure that anyone the focus of their quest would be treated with demonstrable due process? Would you expect they would be sensitive to NOT looking like political prosecutions?

Maybe Blagojevich is guilty as #ell..

But DOJ has some explaining to do, they have refused and failed to step up to do so when asked, Bush hid behind Executive privilege, for himself and all his advisors, so the questions hanging over DOJ and its motives have not gone away.

Blagojevich will be gone in less than two years... All those investigators, prosecutors, staff at DOJ that have been part and party to the questions that remain will be here much longer.

Posted by: dutchess2 | January 28, 2009 8:53 AM | Report abuse

Silly. Pointless. Trivial. This all harks back to Clinton's famous haircut on the tarmac, or the tempest about John Edwards' hairdresser during the primary just past. There is a waterboard with your name on it down at Gitmo, Ruth. See you down there at spring break, OK?

Posted by: H5N1 | January 28, 2009 1:23 PM | Report abuse

Why don't you wait for the trial instead of speculating on the evidence.

The tried and true system requires a calm atmosphere (a courtroom) in front of a judge. The charge is read, the evidence is presented and Blagojevich tests the evidence and gives his case.

Your so-called analysis and speculations are prejudicing the outcome. That is unfair and dangerous.

If ever I go on trial I do not want you writing articles assuming my guilt and ignoring the evidence and arguments that I may wish to put before a court.

Posted by: robertjames1 | January 28, 2009 5:04 PM | Report abuse

Illegal personal enrichment --actual or planned-- is by no means the exclusive province of ousted Blagojevich.

There's news in the past few days that both Tim Geithner and Tom Daschle had provided --at least in the past few years-- governmental "financial aids" to themselves by not paying all taxes due to the US treasury.

While Geithner has thus directly proved his suitability for the US treasury secretary's job, by demonstrating that he takes personal interest in providing "services" in forms like government's financial aid to individual human beings like himself, Daschle also has proved that he is eminently suitable for the job of Secretary of the Department of Health and HUMAN SERVICES.


Posted by: AMemberofHumanSociety | January 31, 2009 3:17 PM | Report abuse

Blago's biggest crime, or what we have tangible evidence for so far, is revealing how and for whom the system really works: it is all about patronage, trading in public employment, cronyism, networking, schmoozing, etc in both parties.

As for what Blago has been proved, with full due process, to have done, is nothing. In no court of law is one allowed to introduce parts of snippets of tapes; the whole tape and chain of custody has to be introduced and vetted. A person cannot be charged or convicted of conspiracy on the basis of ruminations, speculation, problematic comments, expressing wishes or whatever without being part of a common plan involving two or more persons, and without taking at least one affirmative step in furtherance of that common plan (so someone else has to go down with Blago). Further, the release of the materials to be possibly used in a pending indictment, to be used in an impeachment process that does not have all the due process that a criminal trial has, is to violate Blago's 14th Amendment rights which he has as a public employee, as well as to constitute a bad and problematic precedent. And to insulate Obama, a former Professor of Constitutional Law, who should know about presumption of innocence of those not yet found guilty in a competent legal process, even when inconvenient, by not allowing calling of witnessness like Rahmbo Emanuel and others that Blago claims, endorsed or gave him the idea for some of the schemes he was charged with, is but further denial of due process.

Here we see the Dems, just like the Republicans, appear only to care about the U.S. Constitution and due process when it is convenient; they appear just as ready to surrender basic due process and other aspects of the U.S. Constitution as the Republicsns appear eager and ready to destroy.

Posted by: omahkohkiaayo | February 2, 2009 10:26 AM | Report abuse

It amazes me how you can impeach the Governor but you can hire someone who is guilty of tax can call it what you want but thats what it evasion. Also how come the people who bidded on the seat that the Governor was supposedly trying to sell are not held up for the same punishment you are placing on the Governor?? Does that mean you can be guilty for selling drugs but not guilty for buying this not a double standard way of doing things....the people want to hear those tapes in full capacity...and we should be able to decide for ourselves....Jesse Jackson Jr and the others should be held accountable for trying to buy the senate seat when they knew it was illegal to do so....lets see them tried and found guilty also. If not then the Governor is just a scapegoat for the rest of the corrupt Illinois government including Obama!!

Posted by: b_tamargo | February 2, 2009 2:07 PM | Report abuse

It amazes me how you can impeach the Governor but you can hire someone who is guilty of tax can call it what you want but thats what it evasion. Also how come the people who bidded on the seat that the Governor was supposedly trying to sell are not held up for the same punishment you are placing on the Governor?? Does that mean you can be guilty for selling drugs but not guilty for buying this not a double standard way of doing things....the people want to hear those tapes in full capacity...and we should be able to decide for ourselves....Jesse Jackson Jr and the others should be held accountable for trying to buy the senate seat when they knew it was illegal to do so....lets see them tried and found guilty also. If not then the Governor is just a scapegoat for the rest of the corrupt Illinois government including Obama!!

Posted by: b_tamargo | February 2, 2009 2:09 PM | Report abuse

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