The Blago Scandal: What’s the Rush?

Are Obama allies stoking a crisis to push an embarrassing scandal offstage?

By Byron York
Monday, December 15, 2008

How serious is the political crisis in Illinois? Each day brings new word that the emergency is intensifying; the latest came Friday, when Illinois attorney general Lisa Madigan asked the state supreme court to declare Gov. Rod Blagojevich incapable of governing, arguing that the scandal surrounding Blagojevich amounts to a disability that prevents him from serving as governor. At a news conference in Chicago, Madigan also suggested that Blagojevich’s legal troubles are plunging the state into financial crisis, making the governor’s removal an even more urgent priority.

There’s no doubt the problems in Illinois are serious. But a closer look at events suggests that some key state officials, all of them close allies of Barack Obama, are actively fostering a sense of crisis and, in the case of Madigan, actually taking steps to make the crisis worse — while citing the worsening crisis as the reason Blagojevich must go immediately.

In calling for the Court to remove Blagojevich, Madigan pointed to a section of the Illinois constitution which says the legislature “shall specify by whom and by what procedures the ability of the governor to serve or to resume office may be questioned and determined.” Madigan also cited a state supreme-court rule that laid out the procedure for such cases and argued that Blagojevich’s current situation amounts to a “disability” that justifies stripping him of his powers.

But the constitutional provision cited by Madigan was written to deal with a governor who suffered a physical or mental disability — not a political one. “There is a history of the word ‘disability,’” says Ann Lousin, a professor at Chicago’s John Marshall Law School who was a researcher at the Illinois constitutional convention when the provision was written nearly 40 years ago. As Lousin recalls, the lawmakers were mindful of the case of Henry Horner, the Illinois governor who in 1938 suffered a massive stroke but did not leave office. (Horner died in 1940, just before his term would have ended.) “The people who were at the constitutional convention…were people who remembered Horner, they knew the situation, and they wanted to put something in,” Lousin tells me. “It was absolutely physical and mental disabilities.”

Given that, the Illinois supreme court might well reject Madigan’s argument. But if it were to agree with Madigan that political and legal “disabilities” are grounds for removal, the Court would then have to come up with a definition for such “disabilities” — and then investigate whether Blagojevich’s circumstances fit the criteria for removal. That is a turn of events few experts want to see. “Would the court have to investigate the facts to determine whether the governor is disabled or not?” asks Ronald Allen, a law professor at Northwestern University. “Absolutely, and that is what I do not want to see happen — an investigation of some ambiguous charge to see whether a politician is able to hold office.” (Allen tells me he favors Madigan’s fallback plan, which was to ask the court, if it declined to declare Blagojevich disabled, to simply issue an order forbidding the governor from performing some executive functions.)

Beyond stretching the definition of “disability,” Madigan also claims that her task is especially urgent because Blagojevich’s problems are leading Illinois toward financial disaster. She gave her reasoning at the Friday news conference, when a reporter asked her to explain how state business “is not being accomplished because of the governor’s situation.”

“I’m going to give you one example,” Madigan answered. “Short-term borrowing — as you are aware, the state of Illinois is behind in paying its bills, in particular to Medicaid providers. I believe we have a backlog of at least a billion dollars in bills. In order to make those payments, there was short-term borrowing that was scheduled in the very near future. At this point, we — they have postponed that. And it may be very difficult to move forward on short-term borrowing.”

And just why is that? Madigan went on: “Because as part of the process, as the attorney general, I play a number of roles. One is to essentially review and say that the short-term borrowing is legal, but another portion of that requires me to sign a certificate certifying that I am not aware of any proceeding or threatened litigation challenging the authority of the governor to hold his office. And so I at this point would not necessarily be able to sign that.”

With that, Madigan argued that Blagojevich’s problems have led the state to fiscal crisis because it desperately needs to borrow money but cannot do so because it cannot get the signature of . . . Lisa Madigan. And that is because Lisa Madigan is engaged in litigation challenging the authority of the governor to hold his office.

Madigan’s position is supported by state comptroller Daniel Hynes. Last Friday, Hynes, who has called for Blagojevich to resign, warned of fiscal disaster, particularly as concerns Medicaid, if the governor stays in office. “We’re going to have more physicians leaving the Medicaid program,” Hynes said. “We’re going to see hospitals possibly closing. So this is a horrible ripple effect that goes from immediately to those who provide services that will eventually hurt people who rely on state services.”

But the Medicaid problem is nothing new. In fact, Illinois’ fiscal crisis is nothing new. “The state’s already in financial crisis, because of the governor’s policies,” a Republican politico tells me. “Ever since Blagojevich took office, they’ve played a smoke-and-mirrors game with the budget.” Indeed, Hynes himself has been warning about the state’s troubled finances for months. On November 11, for example, Hynes predicted that doctors would “refuse to see Medicaid patients because of inadequate or delayed reimbursements” and “nursing homes, day care centers, and rehabilitation facilities unable to pay staff or their own vendors and suppliers . . . may be forced to close their doors permanently.” And that was weeks before the criminal complaint against Blagojevich.

But now, Madigan and Hynes, along with state treasurer Alexi Giannoulias, another Obama ally, argue that it is the governor’s continued presence in office that presents a financial threat to the state. It is often remarked that all three have ambitions for higher office in Illinois, and, in addition to their concern for the well-being of the state government, might have political motives for their statements and actions. But they have something else in common, as well: friendly ties to Barack Obama. A pro-Obama account of the Blagojevich scandal in the Washington Post last week described the president-elect’s years as a state senator in Springfield this way: “Obama started cultivating Illinois leadership of his own. He mentored a basketball buddy, Alexi Giannoulias, and supported his run for state treasurer. He befriended Attorney General Lisa Madigan and Comptroller Daniel W. Hynes.”

And now, all three are playing critical roles in the effort to push the scandal — and the governor — offstage. And there’s one more player: Standing behind Madigan at her news conference Friday was Abner Mikva, the longtime Illinois political figure (and former Clinton White House counsel) whom Madigan has hired as a special assistant attorney general for the Blagojevich matter. The same Washington Post article, along with many other press accounts, described Mikva as a “mentor” to Obama who remains a close ally today.

Rod Blagojevich is undoubtedly in a very bad way. But we don’t know how far along the investigation into his behavior is. We also don’t know whether there will be an extensive grand jury probe that results in a slate of charges against the governor. And yet several key officials are proposing novel measures to get rid of him. In this case, Blagojevich is facing a group of adversaries who have priorities that extend far beyond simply easing the political crisis in Illinois.