At the beginning of this month, former Illinois Governor Rod Blagojevich filed suit pro se (that is, by himself rather than through a lawyer on his behalf) in federal district court in Chicago to block the implementation of the Illinois State Senate’s decision over a decade ago to ban him from holding any state or local public office in Illinois for the rest of his life. Governor Blagojevich was impeached by the Illinois House of Representatives (by a vote of 114-1) and convicted and banned from future officeholding by the Illinois State Senate (by two separate but equally unanimous 59-0 votes) in 2009 for abuses of power and corruption relating to, among other things, Blagojevich’s actions and motivations in making appointments, including the appointment to temporarily fill the U.S. Senate seat made vacant when Senator Barack Obama became president. After being impeached and removed from office, Blagojevich was convicted on federal criminal corruption charges and sentenced to 14 years in prison. He had served almost 8 years when his sentence was commuted by President Donald Trump in February of 2020. In his federal complaint lodged last week, Blagojevich invokes the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, as well as the constitutional right of voters to be able to pick candidates of their own choosing, in arguing that the process used to remove and ban him from office was constitutionally flawed and not entitled to respect insofar as it denied him “the opportunity to call relevant witnesses in his defense, confront relevant witnesses, and to present exculpatory evidence. . . .” He seeks an injunction allowing him to run for or service in office in Illinois in the future should he desire.
The lawsuit is flawed in so many ways that one would never guess that Blagojevich himself had ever been a practicing lawyer, even though after graduating from Pepperdine Law School he did work for some time as a Cook County prosecutor. (He has since lost his license to practice law.) Blagojevich himself is reported years ago as having said, “I went to law school at a place called Pepperdine in Malibu, California, overlooking the Pacific Ocean — a lot of surfing and movie stars and all the rest. I barely knew where that law library was.”
So what are the problems with his lawsuit? First, he names as the two defendants the State of Illinois and the Illinois General Assembly. But the U.S. Supreme Court has consistently (if incorrectly) construed the Eleventh Amendment of the Constitution as embodying a principle of “sovereign immunity” that bars suits against states themselves or state-level entities (like a state legislature) in federal court unless the state consents or Congress has validly abrogated the state’s immunity, neither of which the complaint alleges in this case. Instead, what Blagojevich should have done is make use of the so-called Ex Parte Young fictional device (drawn from the 1908 Supreme Court case of that name), which allows a plaintiff to sue individual state officers in federal court, provided those officers are charged with implementing the state laws that the plaintiff claims are unconstitutional, seeking a federal court order barring those officials from enforcing those laws. In the present dispute, Blagojevich should have sued the Governor or the Attorney General under the Ex Parte Young doctrine, asking the federal court to declare the ban on Blagojevich’s ability to hold state office invalid and to enjoin those state officials from denying him the ability to be considered or voted on for such jobs. Blagojevich would still most likely lose his lawsuit (for reasons discussed below), but at least he could surmount the Eleventh Amendment hurdle if the state invokes sovereign immunity as a defense.
Second, Blagojevich shot himself in the foot regarding whether he has “standing” under Article III of the Constitution to bring the suit, or (relatedly) whether the suit is ripe enough under Article III for a federal court to consider it on the merits. At a press conference Blagojevich held to announce the lawsuit, he said: “I haven’t thought about running for office. But I am not going to rule out any options either.” But wanting to keep options open is a far cry from what federal courts require for a plaintiff to bring suit—an actual, cognizable legal injury. Countless disputes have been tossed from the federal courts—including from the U.S. Supreme Court—because plaintiffs have not asserted clearly and emphatically a specific plan to take actions that the laws they challenge interfere with. Speculation about perhaps seeking office at some unspecified future time likely won’t cut it. To be sure, Blagojevich might try to walk back his careless press conference statements if standing becomes an issue, but the federal court needn’t credit his later-asserted plans of office-holding, especially since standing is often a convenient way for federal courts to avoid having to deal with cases they’d otherwise have no interest in resolving.
And there is yet a third threshold, or “justiciability,” hurdle—that of the “political question” doctrine, under which federal courts stay out of certain kinds of disputes on the ground that are more properly determined as a final matter by the elected branches of government. One of the most extensive modern political-question discussions by the Supreme Court came in the 1993 Supreme Court ruling of Nixon v. United States, a case somewhat similar to Blagojevich’s. In Nixon, in a majority opinion written by then-Chief Justice William Rehnquist, the Court found a claim by federal Judge Walter Nixon that the impeachment process used against him in the U.S. Senate violated Article I of the Constitution was not “justiciable” because the dispute over the meaning of Article I’s impeachment provisions was the kind of “political question” that the federal judiciary is not allowed to decide.
Nixon was a U.S. District Judge in Mississippi who had been criminally convicted of making false statements before a federal grand jury and sentenced to prison. Because, even after his criminal conviction and sentence, he continued to hold office as a federal judge, the House of Representatives adopted articles of impeachment against him and presented them to the Senate. In turn, the Senate, pursuant to its own impeachment rules (specifically, Senate Impeachment Rule XI), appointed a Senate committee to receive testimony and other evidence and to report to the whole Senate. After the committee had done its work and presented the full Senate with a report and transcript, the entire Senate cast their ballots, with more than two-thirds (the constitutional requirement for conviction) voting to convict Judge Nixon and remove him from judicial office.
Thereafter, Nixon filed suit in federal district court, arguing that Senate Rule XI violated the Constitution inasmuch as Article I of the Constitution gives to the entire Senate, and not just a committee, the authority to “try” all impeachment cases. In other words, argued Nixon, because the entire Senate had not participated in the evidentiary hearings, the Senate had not conducted the “trial” that the impeachment provisions of the Constitution contemplate.
In rejecting Nixon’s challenge, the Court said: “Before we reach the merits of [Nixon’s] claim [that the Senate’s actions violate the Impeachment Trial Clause of Article I], we must decide whether it is ‘justiciable,’ that is, whether it is a claim that may be resolved by the [federal] courts. We conclude that it is not.” The Court then went on to discuss the parameters of the so-called political question doctrine—judicial rules that seek to identify disputes that do not belong in the federal courts—and the nature and history of the impeachment provisions of Article I. In this connection, the Court observed that the “parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment power.”
In addition, the Court was “persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability. . . . The lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and thus his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial [the Senate might hold] if its first judgment of conviction were invalidated.”
To be sure, Blagojevich’s claims that he was denied due process by the Illinois State Senate could arguably be distinguished from Nixon’s claims that the U.S. Senate did not “try” him as it was constitutionally required to do. The meaning of “try” under Article I might be more nebulous and forgiving than the basic due process entitlements that Blagojevich cites concerning the ability to present witnesses and evidence on one’s behalf. (I should note here that Blagojevich’s mention of the Sixth Amendment is quite frivolous—that amendment applies only in criminal cases, and the Illinois Constitution, following the U.S. Constitution, makes clear that impeachment judgments by the Illinois Senate extend no further than to removal of office and disqualification from future officeholding, matters that are decidedly non-criminal.)
And it is also true that the Nixon Court didn’t completely live up to its own rhetoric about staying out of the merits of impeachment proceedings. While the Court said it had no power to look at the legality of Senate Rule XI, the Court then went on to say that Rule XI is completely consistent with what the word “try” in Article I of the Constitution means: “The word ‘try,’ both in 1787 and later, has considerably broader meanings than those to which [Mr. Nixon] would limit it. . . [W]e cannot say that the Framers used the word ‘try’ as an implied limitation on the method by which the Senate might proceed in trying impeachments.” That language is not the Court staying out; it is the Court stepping in and deciding that the Senate has not violated the (Court’s understanding of the) text of the Constitution. Saying the Senate has not violated the Constitution is not the same thing as saying the Court has no power to decide whether the Senate has violated the Constitution. The first is a ruling on the merits; only the latter is a true, pure invocation of political question doctrine.
The point was illustrated by a hypothetical posed by Justice Souter in an opinion concurring in the judgment in Nixon. He mused: “If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a ‘bad guy,’ . . . judicial interference might well be appropriate.” Justice Souter’s approach (and that of other justices who concurred in the judgment) is not one in which the Court steadfastly stays out; it is one in which the Court leans in, but presumably gives a great deal of latitude to the Senate (and presumably the House too) on what it is constitutionally permissible. Under this view, perhaps we should not think of political question doctrine in the impeachment setting as a yes-no determination of whether federal courts can review, but instead think of it more in terms of how much deference the Court will afford the political branches even if the Court does not stay out of the matter entirely. And even though Chief Justice Rehnquist’s majority opinion does not explicitly embrace Justice Souter’s approach—and instead purports to adopt a bright-line rule of no judicial review—the fact that the majority does opine on the meaning of the word “try,” and how the Senate’s definition of that word is a permissible one, suggests more agreement with Justice Souter than the majority is willing to acknowledge.
Yet in spite of these potential doctrinal openings for a federal court to wade more deeply into Blagojevich’s allegations of unfairness (assuming the other justiciability hurdles could be cleared), it seems quite unlikely that a federal court would be more inclined to rigorously review the legality of a state impeachment process than a federal one, for the simple reason that not only are separation of powers implicated but federalism is too. In this regard, we must remember that the Fourteenth Amendment’s Due Process Clause is not perhaps the most important piece of constitutional text here. The Tenth Amendment, which reserves power to the states where it is not taken away by the federal Constitution, gives states wide latitude to structure their own systems of government any way they want, so long as they remain committed to basic majoritarian principles of republican government. And when an Illinois governor is impeached and removed and barred from office, people in the state still have their voices heard in a majoritarian republican government way; under the Illinois Constitution in such a case the governorship is assumed by the lieutenant governor who had been elected in a statewide vote, and voters in the future are free to vote for any other candidate they want who is eligible to serve. So a federal court would not likely find a significant basis to impose its own views of precisely what kinds of procedures are required by the Illinois Senate in implementing what is essentially a political, rather than a legal, process.
And what of Blagojevich’s attempt to pull in the right of the voters to be able to elect him if they want? First of all, the voters’ desires seem to have nothing to do, analytically, with whether he was given adequate process in the Illinois Senate; even if more process had been afforded, the voters’ ability to elect him down the line would be constrained by a ban on future officeholding.
And that is perfectly ok, because (and this is a more general response to Blagojevich’s invocation of the voters’ interests) nothing in the federal Constitution prevents states from imposing reasonable limits on the options that voters have to choose from. Just as term limits and other reasonable ballot-access limitations (such as age, residence, or signature-gathering requirements) regulate the voters’ choices in constitutionally acceptable ways, so too do impeachment trials (or recall processes), even (or perhaps especially) with streamlined procedures allow political systems to operate efficiently. So I would be shocked if federal courts felt they had warrant to second-guess the bipartisan and almost unanimous results of impeachment trials and prohibitions on future office-holding like those at issue in Blagojevich’s lawsuit.
Interestingly enough, it even appears that Blagojevich himself would also be surprised if his lawsuit went anywhere. One media account of his press conference observed that “Blagojevich didn’t sound particularly confident about his chances of prevailing, noting for journalists how he had received a C in constitutional law at law school.” Judging from the details of his complaint and the presser, he never went back to learn what he missed in that class, and he knows it.