Due Process for Rod Blagojevich?

In a typically colorful press conference (transcript here), soon-to-be-ex-Governor of Illinois Rod Blgagojevich complained that the rules under which the Illinois Senate will conduct his impeachment trial deny "fundamental due process," amounting to "a trampling of the Constitution." From the context of his remarks, it's clear he means the federal Constitution rather than (or at least in addition to) the Illinois Constitution. (He objects to the "violation of the freedoms we enjoy as Americans.")

Blagojevich singled out two impeachment rules as allegedly unfair:

a) Blagojevich: "Rule 8B essentially says that the charges that the House bring in a report -- that was not cross-examined, not challenged, not confronted -- that those very charges cannot be challenged, cannot be contested, cannot be refuted. In short, you can have all the witnesses you want; it doesn't matter because that document alone is going to be accepted as fact."

He's right that 8B forbids any objection to the admission of the House report, but it is a rule of evidence. Rule 8 as a whole is titled "Rules of evidence governing the trial." In light of the rest of Rule 8, Rule 8B is best read as forbidding a collateral attack designed to exclude the House report but not in any way as forbidding the introduction of further evidence refuting the House report. Indeed, Rule 8B does not say that the House report must be accepted by the Senators as true or what weight the Senators must attach to it, if any--only that it must be admitted into evidence.

b) Blagojevich: "Rule 15F, which by all intents and purposes prevents me from calling in witnesses like presidential Chief of Staff Rahm Emanuel, from top presidential staffer Valerie Jarrett, from Congressman Jesse Jackson Jr. and a whole series of other witnesses that I would eagerly call to testify under oath to show that I have done nothing inappropriate with regard to the decision to pick a United States senator."

This objection has more to it. Although the rules generally allow Blagojevich to call his own witnesses, Rule 15F does impose a limit. It bars the calling of witnesses whose impeachment trial testimony would, in the judgment of the U.S. Attorney, compromise the criminal investigation and prosecution of Blagojevich. That is a potentially very serious limit on Blagojevich's ability to defend himself.

It's not entirely clear why the testimony of a potential witness at the impeachment trial would compromise his or her subsequent testimony at a criminal trial. A federal appeals court reversed the conviction of Oliver North but only because it found that the trial judge had taken inadequate measures to ensure that none of the evidence against North was the indirect product of North's own testimony before Congress, for which he had received use and derivative use immunity. But if the Illinois Senate does not plan to immunize witnesses called before the impeachment trial, then their testimony before the Illinois Senate would not taint subsequent testimony by them or others at Blagojevich's federal criminal trial. The key, as I understand the issue, is that Rule 15F aims to avoid compromising the federal investigation. By telling what they know now, witnesses at the Senate impeachment trial could reveal to the public--and thus to targets of the investigation including Blagojevich and potentially others--aspects of the prosecution case and strategy that the prosecution would like to keep secret for now. I suppose that's a legitimate worry, but it seems that so much has already been revealed that it's hard to see much further damage along this dimension. Accordingly, U.S. Attorney Patrick Fitzgerald probably should not have much occasion to invoke Rule 15F.

Suppose, however, that he does. Suppose, that is, that Fitzgerald does block witnesses that Blagojevich deems crucial. Would that deny Blagojevich's federal due process rights? There are at least two reasons to think not.

First, in order for the federal guarantee of due process to kick in, the claimant must have a protected "property interest." In many contexts, a government job counts as a property interest requiring fair procedures for termination. However, Supreme Court cases from 1900 and 1944 (here and here) hold that an elected office is not a property interest. Those decisions are still good law: as recently as 2005, the U.S. Court of Appeals for the Second Circuit said so (here), even while wondering whether the Supreme Court itself might want to reconsider this principle in light of subsequent legal developments. For what it's worth, I think it highly unlikely that the current Supreme Court would reconsider the principle that elected office does not constitute a property interest. Among other things, doing so would likely strike a majority of the Court as intruding into matters reserved for the states. But the larger point is that as the law now stands, Blagojevich is not even entitled to federal due process in his impeachment trial.

Second, even if we were to assume that there were a federally protected property interest entitling Blagojevich to due process in his impeachment trial, due process in this context would not mean the full procedures of a criminal trial. Under the leading precedent (here), the procedures required depend on a balancing of the interests at stake. Blagojevich's interest in remaining Governor is not as strong as his interest in avoiding prison and, conversely, the interest of Illinois in having a functional executive branch is very strong. Thus, the Illinois procedures, even if imperfect, probably would pass muster under the balancing test.

Posted by Mike Dorf