The New York Times is reporting that U.S. Attorney Patrick Fitzgerald has filed a motion to provide audio tapes of four of the recorded calls connected to the criminal complaint against Governor Rod Blagojevich to the Illinois House panel that is seeking his impeachment. The recordings refer to Blagojevich's efforts to raise money before a new ethics law went into effect. According to the Times, the calls will be edited to omit elements "not material to the fundraising case." Which is to say that we won't hear Blagojevich cursing out the president-elect on the evening news anytime soon.
Blago's lawyer, Edward Genson, is not pleased:
“These are shadows,” Mr. Genson said of the claims. “We're not told who's doing the talking other than saying Rod Blagojevich. There is nothing in that complaint that we know that we are able to either refute or establish without knowing the names of the people, and then, if we know the names of the people that are involved, we are told that we can't subpoena to see if in fact what those words meant.”
Mr. Genson said the panel should recommend that the impeachment proceedings continue only if it found “clear and convincing” evidence that the governor had engaged in criminal activity or noncriminal actions that were of a “magnitude and gravity” of a crime.
I'm somewhat sympathetic to Genson's point here. In a criminal case, Fitzgerald wouldn't get to cherry-pick the evidence without the defense at least being able to see what they've collected. Here, Fitzgerald is only providing the audio that he's outlined in the motion, out of its original context. Gerson doesn't have an opportunity to examine it beforehand or in full and make an effective counterargument. The threshold for impeachment is that "clear and convincing" evidence of actions on behalf of the governor that were of the “magnitude and gravity” of a crime, and even if what is on the tapes is clear, how convincing should it be taken entirely out of context?
-- A. Serwer
