It’s his bargaining chip.
“He’s in a much better position to make a deal if he was a sitting governor,” said Ann Lousin, a professor at John Marshall Law School in Chicago. “In his position, I would not resign. He loses his leverage.”
Blagojevich faces a short, universally painful list of options as the state legislature and the state Supreme Court weighs measures to oust him, and the Justice Department continues its corruption probe.
He could stay in office and battle it out. He could step aside temporarily. Or he could resign — but only after trying to strike a deal for leniency with prosecutors, according to interviews Monday with eight Illinois legal experts.
Almost no matter what he decides, the case shows little sign of a quick resolution.
That’s no help to President-elect Barack Obama, who would prefer nothing more than to get his home-state governor out of office, and out of the headlines.
Ensuring further distractions for the presidential transition, Obama announced he would delay the release of an internal review about contacts between his aides and Blagojevich's office until next week.
A criminal trial could bring to light — in all their tape-recorded glory — whatever conversations took place between Obama aides and Blagojevich over filling Obama’s Senate seat.
Blagojevich talked tough Monday about staying in office, repeating that he’ll fight the charges all the way to the courthouse. He’s retained Ed Genson, a respected criminal defense attorney who is known in Chicago for taking cases to trial.
“Technically, he has very few options," said Dennis Rendleman, an attorney and assistant professor of legal studies at the University of Illinois at Springfield.
But here are a few of them:
Resign (but negotiate first). This option is the overwhelming choice of voters and Blagojevich’s colleagues in Springfield.
But if he walks away from the job without first trying to strike a deal, his already minimal bargaining power diminishes significantly, legal experts said.
U.S. Attorney Patrick Fitzgerald publicized the federal corruption probe earlier than he had planned, suggesting a concern on his part for the harm that Blagojevich’s continued tenure would have on the state. He would seemingly have an interest in getting Blagojevich out of office sooner rather than later, experts said.
By offering up his resignation, Blagojevich could seek assurances of a shorter sentence or protection for his wife, Patricia, who faces her own legal exposure, experts said.
“It is the only bargaining chip he has and since everyone wants him out of there, it is not an inconsequential bargaining chip,” said Dawn Clark Netsch, a former state comptroller and state senator who is also law professor emeritus at Northwestern University.
There is a recent parallel: the case of disgraced former New York Gov. Eliot Spitzer. He resigned just days after his liaison with a high-priced call girl surfaced — a move that’s widely believed to contributed to federal prosecutors’ decision not to charge him with a crime.
But time may be running short for Blagojevich, said Andrew D. Leipold, a professor of criminal law at the University of Illinois College of Law.
“The longer it goes, if it were to appear for example that he is going to be impeached anyway, it is not all that clear how much leverage he would have,” Leipold said.
Stay in office. This scenario guarantees at least several months of drama and potential governmental paralysis, not to mention awkward situations, including Blagojevich presiding over the swearing-in ceremony next month of the new Legislature that may urn around an impeach him.
Blagojevich would need to balance his normal duties with a barrage of threats, from the criminal to the legal to the political, to his grip on power.
The impeachment process, which closely mirrors the federal system, opens Tuesday when 12 Democrats and nine Republicans start work on making a recommendation to the full House on charges. Madigan said the committee would meet through the holiday season, taking only two-day breaks at Christmas and New Year’s Day.
“We're going to proceed with all due speed, but we're going to make sure that what we do is done correctly,” Madigan said.
The review will include the criminal charges against Blagojevich as well as other possible wrongdoing during his two terms in office, including abuse of power and ignoring state laws, Madigan said.
If the House decides to impeach the governor, the process would move to the Senate, which would rule on the charges. The state Supreme Court chief justice would preside over the trial in the state Senate, with House managers presenting the case against Blagojevich and Blagojevich’s counsel defending him.
The state constitution provides little guidance on what constitutes an impeachable offense, law experts said, but there’s little doubt about the expected outcome.
“It is clear the legislature will impeach him,” said Kent Redfield, a political science professor at the University of Illinois at Springfield, where he is also interim director of the Institute for the Legislative Studies. “There is no question about that.”
Running on a parallel track is the attempt by Illinois Attorney General Lisa Madigan to ask the state Supreme Court to remove Blagojevich, claiming he is unfit to serve. The attorney general, who is considered a contender for Senate or governor, said Sunday that she expects the court will hear her request “probably just in a few days.”
And lastly, there is the criminal process. If Blagojevich survives all other attempts to oust him, a felony conviction could level the final blow. He would need to resign immediately, experts said.
Temporarily step aside. The state constitution allows the governor to temporarily hand over power to the lieutenant governor. He would remove himself from daily governance and reserve the right to return — but he would continue to receive his salary, which news reports suggest could be a factor.
Blagojevich reportedly owes more than $1 million in home mortgage payments and legal bills, with more attorneys' fees expected to come as the corruption probe unfolds.
“This is almost like a bad episode of ‘Survivor,’” said Rendleman, the legal studies professor at the University of Illinois. “He knows he is going to get voted off the island. It’s just a question of how long he can hold out.”