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The Case against Impeaching Rod Blagojevich:

Over at Legal Insurrection, Cornell's William A. Jacobson is making some excellent arguments against an Illinois Senate conviction of Governor Blagojevich. To wit: the evidence against Blagojevich consists almost exclusively of an FBI agent affirming the authenticity of highly selective excerpts from surveillance tapes which he provided via an affidavit. Notably, Agent "Cain refused to answer whether the excerpts in the affidavit put events in 'the proper context' (Tr. 293) or whether he has learned anything in the seven weeks since he signed the affidavit which 'would make any of the statements in your affidavit untrue?' (Tr. 299)."

Put me in the camp that is reluctant to ruin someone's life just because Patrick Fitzgerald says so. I thought the Scooter Libby prosecution was wrong. And it seems clear that Fitzgerald's press conference against Blagojevich was an extreme violation of Illinois Rule of Professional Conduct 3.8(e). (For a discussion of the prosecutor's ethical duty not to make unnecessary statements against the accused, see my 2002 NRO article on Attorney General Ashcroft's remarks about John Walker Lindh. Compared to Fitzgerald's remarks, General Ashcroft's comments were relatively mild.)

Do I think that Blagojevich could well be guilty? Yes. Do I think that Blagojevich has any merits as a public servant? No. How well do I know Blagojevich? Only slightly, having debated him on ABC Nightline (about gun shows) when he was a U.S. Representative in 1998.

So if I were in the Illinois Senate, I might well, with great personal regret, vote against the conviction of Governor Blagojevich on the articles of impeachment.

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