A call to vote "not guilty"

Illinois Review wants to thank Cornell University law professor William Jacobson for graciously offering his provocative assessments of Illinois' seven week long legal soap opera.  The good professor offers today yet another controversial, but thoughtful, observation that should make us all take pause. 

This is history in the making today, and it behooves us not to be swept into the media frenzy and political hype.  Something huge is happening in the Illinois General Assembly, we're all participants, and we should all be deliberative.  

Professor Jacobson calls for the Senate to reject finding Blagojevich guilty:

Just Say No To The Flawed Impeachment Of Rod Blagojevich

by William Jacobson

I didn't expect to end up opposing the impeachment of Illinois Gov. Rod Blagojevich. When the news first broke that Blagojevich was charged, among other things, with attempting to "sell" Barack Obama's vacant Senate seat, I was inclined to follow the media and pundits in throwing the bum out based on U.S. Attorney Patrick Fitzgerald's press conference. I've now come to a different conclusion, not because Blagojevich isn't a bum, but because the process and politics behind the impeachment are so flawed that the cure is worse than the disease.

I won't repeat all of what I've said in over 50 posts over the past seven weeks, so here is the short version of why Illinois Senators should say no to this impeachment:

1. The process is unconstitutional. The Senate delegated trial decision-making authority to Fitzgerald, in violation of the Illinois Constitution, which vests such authority exclusively in the Presiding Chief Justice and Senators. Fitzgerald started this process with his press conference, has made public only such evidence as supported his goal of removing Blagojevich from office, and has insulated that evidence from challenge. This fundamental flaw in the process has tainted the trial beyond remedy.
2. The process is fundamentally unfair, in that it restricted Blagojevich's ability to challenge the evidence against him as to the criminal complaint affidavit upon which the Senate relies almost exclusively for the allegations of criminal conduct. While we can debate to what extent Blagojevich is entitled to "due process," we all should want removal of an elected Governor to require a fundamentally fair process and trial, which has been absent here.
3. The non-criminal offenses do not rise to the level of impeachable offenses. While the Illinois Constitution does not define what is an impeachable offense, any reasonable understanding requires that the conduct be so extreme as to be the functional equivalent of a high crime or misdemeanor. The non-criminal offenses charged boil down to a political battle between the executive branch and the legislature as to the proper balance of powers. Such separation of powers contests properly are left to the courts to sort out. Impeachment on such matters merely becomes a tool for the legislature to assert its primacy in the political power game; but the players in a game should not also be the referees, which is what is happening in this impeachment proceeding.

There you go. Do the right thing, even if it is not politically easy. Just say no to this flawed impeachment.