Experts say Blagojevich lawsuit doesn’t hold water
Former governor challenging ban on running for office
Rod Blagojevich used to joke that “he barely knew where the law library was” as he earned his law degree from Pepperdine University amid surfing the Pacific Ocean and mingling with movie stars in Malibu.
Judging by the lawsuit the disgraced former Illinois governor filed this week challenging a ban on him running for state and local office, Blagojevich still has a penchant for skipping his legal homework, said experts who dismissed his action as baseless.
“This is a frivolous lawsuit,” said Ann Lousin, a professor of constitutional law at the University of Illinois at Chicago law school whose lengthy legal background includes helping draft the state’s constitution and chairing the Chicago Bar Association’s constitutional law committee. “This lawsuit is not going anywhere.”
“This complaint is not worth the paper it’s printed on,” said Jim Durkin, a former assistant state prosecutor who leads the GOP caucus in the Illinois House and was ranking Republican on the Illinois House panel that recommended Blagojevich’s impeachment. “Any sound member of the federal court will dismiss this case ab initio, which means, from the beginning.”
Blagojevich announced his lawsuit earlier this week during a news conference outside the Dirksen Federal Building, where he was accompanied by his childhood friend and Fabio-lookalike Dan Colla.
It was the same building where Blagojevich was sentenced to 14 years in prison on federal corruption charges almost a decade ago. Blagojevich’s sentence was commuted 18 months ago by then-President Donald Trump.
Blagojevich, who lost his law license after being convicted, filed suit on his own behalf, claiming state lawmakers acted unconstitutionally in January 2009 when the state Senate voted 59-0 to bar him from ever holding public state or local office again.
The vote came moments after the Senate, acting as an impeachment tribunal, convicted him on another 59-0 vote and removed him from office. Both votes came prior to Blagojevich’s federal conviction.
The bar on holding state or local office is part of the Illinois Constitution’s section on impeachment. It mirrors much of the language in the U.S. Constitution, which contains a similar provision allowing a vote by the Senate to disqualify an impeached federal office occupant from holding future federal office.
In his lawsuit, Blagojevich contends the bar on holding state or local office is both unconstitutional and the result of an unconstitutional impeachment proceeding that denied him his due process rights.
He further argues his inability to run for state and local office disenfranchises voters’ of their First Amendment rights to be able to vote for or against him in a free election. Blagojevich, a former North Side congressman before becoming governor in 2003, can still run for federal office — including the U.S. Senate seat he was accused of trying to sell after Barack Obama’s election as president.
But Blagojevich may never get to make any of his arguments in a courtroom due to what’s known as a lack of standing — the ability to show that anyone has been harmed.
Though his lawsuit addresses voters’ rights, it does not name any individual voters claiming they have been hurt by being unable to vote for Blagojevich. Federal courts have said, “the general rule is that one has no standing to raise the First Amendment rights of others.”
And while Blagojevich argues in his lawsuit that he should be able to seek state and local office he told reporters he had no plans to run for anything. Moreover, federal courts have ruled that “the right to run for or hold public office is not a fundamental right.”
Blagojevich also argues he was unconstitutionally denied the right to call witnesses and receive due process in the legislature’s impeachment proceedings.
But his arguments ignore a significant fact — impeachment is a political proceeding — and the constitutional rights he claims were violated only apply to legal proceedings.
Though Blagojevich was not entitled to due process in either the House committee that approved a comprehensive article of impeachment against him or in his Senate trial, he was offered the right to call witnesses, present evidence and to testify.
But he knew that the witnesses he sought to call wouldn’t be allowed to testify under legislative rules that prohibited lawmakers from interfering in the ongoing federal investigation.
“The committee provided the governor procedural rights and safeguards that far exceeded anything the committee was required to give him,” read the final report from the House panel. “The committee afforded the governor these protections because of the gravity of the inquiry and because of the committee’s desire to have a fair hearing of all relevant and available evidence.”
While Blagojevich may have chosen to exercise his right against self-incrimination by not testifying about the criminal acts uncovered by the federal investigation, the impeachment article alleged other acts that were not criminal and for which he could have provided a defense. He did not.
Ultimately, Blagojevich also presented no defense in his Senate trial. He appeared before lawmakers on the final day of his impeachment trial, just hours before the Senate vote to remove him from office and bar him from future office. But Blagojevich did not testify under oath where he could be questioned. Instead, he delivered a closing argument that recast elements of his long-worn campaign stump speech.
“The former governor is complaining about lack of due process. But the problem is, he failed to present one witness, any shred of evidence or testify himself,” Durkin said. “So when someone complains about due process, and you have not availed yourself to due process, the complaint falls flat.”
While Blagojevich is asking a court to overturn a provision of the state’s impeachment process, the U.S. Supreme Court has ruled that in cases of federal impeachment the issues are “nonjusticiable,” or subject to court review, since the power of impeachment is reserved solely for the legislative branch of government.
Blagojevich’s court filing also incorrectly asserts that a federal appeals court reversed his convictions involving the offer to sell Obama’s U.S. Senate seat as being nothing more than “routine political log rolling.”
Blagojevich had sought to have all 18 counts of his conviction overturned, something the 7th U.S. Circuit Court of Appeals called “frivolous.”
The appeals court did toss the counts related to his allegedly selling the Senate seat because the jury instructions did not separate legal activity, such as his offer to trade the Senate appointment for a Cabinet seat, from illegal activity, such as Blagojevich’s efforts to personally enrich himself through a private payment for the appointment.
In addressing reporters, Blagojevich pointed to larger reasons to push his lawsuit. A supporter of Trump, who was twice impeached by the House but never convicted in the Senate, he has contended that there has been a “political weaponizing” of prosecutors and the impeachment process.
It also gave him a chance to offer some political payback to his chief nemesis, former House Speaker Michael Madigan, who resigned his governmental post and role as state Democratic chairman after being implicated in a federal bribery investigation involving Commonwealth Edison. Madigan has not been charged with any wrongdoing and has denied knowledge of ComEd’s scheme to curry his favor.
Blagojevich has always blamed Madigan for his removal from office, going so far as to contend that the former House speaker and the FBI conspired against him. The filing of the suit gave Blagojevich a chance to air his largely disregarded grievances while pointing out that Madigan now finds himself under the lights of the federal government.
But Blagojevich also has made it clear that he is still looking to try to clear his reputation, telling reporters, “If they wrote my obituary in tomorrow’s papers, it wouldn’t be that good” and that he wanted to do “things with my life where that obituary can be corrected.”
Durkin, who likened Blagojevich’s lawsuit to “the gibberish that I’ve sadly seen in the past from incapacitated pro-se plaintiffs,” said the former governor’s efforts were for show. Durkin noted that his sidewalk news conference included an ABC News documentary crew following Blagojevich for an upcoming program.
“People look at him as kind of like this court jester of Illinois government. Some people find it entertaining,” Durkin said of Blagojevich. “But this is just merely a way for him to satisfy his insatiable appetite for public attention.”
In an ironic twist, Blagojevich’s lawsuit was initially assigned to U.S. District Judge Thomas Durkin — Jim Durkin’s brother. On Wednesday, the case was reassigned to U.S. District Judge Steven Seeger. Seeger was appointed in 2018 to replace James Zagel, who oversaw Blagojevich’s corruption trial and sentenced him to 14 years.