Law Professor Examines Blagojevich Case Professor Mark Rosen, who teaches constitutional and state and local government law at Chicago-Kent College of Law, talks about Gov. Rod Blagojevich's trial in the state Senate.
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Law Professor Examines Blagojevich Case

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Law Professor Examines Blagojevich Case

Law Professor Examines Blagojevich Case

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ROBERT SIEGEL, host:

So a governor who has been impeached faces a trial in the state Senate while bitterly protesting the rules of that trial. Does he have a point? We're going to ask Professor Mark Rosen who teaches constitutional and state and local government law at Chicago-Kent College of Law. Welcome to the program.

Professor MARK ROSEN (Law, Chicago-Kent College of Law): Thank you very much.

SIEGEL: What's wrong with Governor Blagojevich's claim that he should be able to summon witnesses for his defense?

Prof. ROSEN: Well, he does have the power to summon many witnesses for his defense. The primary problem with his claims is that he's trying to draw an analogy between the impeachment process, which is a political process, and the very different judicial processes of civil and criminal trials.

SIEGEL: But the basis of his impeachment would appear to be a criminal complaint that the U.S. attorney issued, and it isn't the basis of an adversarial proceeding, and there hasn't been a trial that would be an adversarial proceeding. So at some point, shouldn't he have a chance to present his side of it?

Prof. ROSEN: He certainly should have a chance to present his side to it. But the basis for the impeachment proceeding is a whole array of activities, not just the U.S. attorney's criminal allegations, but all sorts of other actions that according to the articles of impeachment constitute an abuse of power. And with respect to those other matters, the governor has the power to call other witnesses.

You know, the main difficulty is this. Everybody knows that civil and criminal trials take a long time, and that's appropriate because we don't want to take somebody's money away or throw them in jail unless there's been a very careful view to see if they deserve that. But impeachment really is quite different. A high official of government serves at the pleasure of the people, and if there's reason to remove that official, it has to be done in a process that moves considerably faster than a civil or criminal trial would.

SIEGEL: But we in the press and people in the public generally will be very careful to speak of alleged offenses of things that have been charged against Governor Blagojevich. They're not proved at this point. And I guess my question is, if it really is a political proceeding, isn't it implicit in that that the criminal complaint filed by Patrick Fitzgerald, the U.S. attorney, is almost coincidental here - that if the governor had done anything sufficient to embarrass two-thirds of the state Senate so much they wanted him out, that's impeachable.

Prof. ROSEN: That's correct. I mean, there's a tremendous amount of discretion that is vested in the legislature to move forward with impeachment when they think to be appropriate. Ultimately, the check of whether there's been abuse by the legislature of their impeachment power is how the people of Illinois respond.

SIEGEL: Is there any cause for concern that any federal prosecutor, or conceivably as they prosecute, I suppose, by indicting a public official could effectively bring about that person's removal from office because nobody wants an important public official to be preoccupied with his own trial for months?

Prof. ROSEN: In theory, yes. That could open the door to that. In practice, a discretion-filled process like impeachment relies on the good judgment and good faith of the legislature. And one would hope that going forward with impeachment in this context would not open the door overly fast to impeachment in the future. I mean, if that happened, that would be problematic because that would enfeeble governors and make them mere puppets of the legislatures.

SIEGEL: Or puppets of prosecutors.

Prof. ROSEN: That's correct. You know, the check ultimately on potential abuse by prosecutors or potential abuse by legislatures is the public's disapprobation.

SIEGEL: Professor Rosen, thank you very much for talking with us.

Prof. ROSEN: You're very welcome.

SIEGEL: It's Mark Rosen, who teaches constitutional and state and local government law at Chicago-Kent College of Law.

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