Publications & Articles

January 2011

By: Roy E. Hofer

In 2008, the possibility of Senator Barack Obama being elected president and creating a Senate vacancy set in motion a series of events that would showcase the worst in Illinois politics.

At that time, Roland Wallace Burris was a 73-year-old in the sunset of his political career practicing law with a Chicago law firm. His political victories had already been chiseled under the heading “TRAIL BLAZER” on the granite mausoleum he had built for himself and his wife in Chicago’s Oak Lawn Cemetery: FIRST AFRICAN-AMERICAN IN ILLINOIS TO BECOME ILLINOIS ATTORNEY GENERAL 1991-95; ILLINOIS STATE CONTROLLER 1979-91.” Since 1968 he had also unsuccessfully run for the Illinois state legislature, the United States Senate (1989), governor (1994, 1998, 2002) and Chicago mayor (1995).
 

Early On Burris Expresses His Interest In Obama’s Senate Seat

June 27, 2008 (Chicago) Burris attended a fundraiser for Governor Rod Blagojevich and asks Doug Scofield (Blagojevich’s deputy governor) and/or John Wyma (longtime Blagojevich adviser turned lobbyist) “to tell Governor Blagojevich that I was interested in filling Barack Obama’s Senate seat if he were to be elected President.”

Early Oct. 2008 (Chicago) Gov. Blagojevich’s brother, Robert Blagojevich, called Burris to seek his assistance in fund-raising for the Governor.

Oct.-Nov. 2008 (Chicago) Burris left a telephone message with John Harris, Blagojevich’s chief-of-staff, to give a recommendation for his nephew, who had applied for a job with the State of Illinois. Harris returned Burris’ call a few weeks later and, at the end of the conversation, Burris inquired “whether there was any news regarding . . . Blagojevich’s possible picks to fill President Obama’s Senate seat. Harris indicated there was no news . . . .”

Nov. 2008 (Chicago) Rob Blagojevich called Burris twice to seek his assistance in fund-raising for the Governor.

Nov. 4, 2008 Senator Obama elected President.

Nov. 13, 2008 (Chicago) In a taped telephone conversation, Rob Blagojevich and Burris discussed what Burris can do for the Governor:

• Rob: “We’ve had a number of conversations about . . . anything you might be able to do . . . before the end of the year for Rod. Again, we’re trying to get as much as we can in his war chest . . . .”
• Burris: “[I]f I put on a fundraiser now . . . it has so many negative connotations that Burris is trying to buy an appointment . . . . [I am] trying to figure out how to deal with this and still be in the consideration for the appointment. . . . I will personally do something . . . . [T]ell Rod to keep me in mind for that seat, would ya?”

Nov. 16, 2008 (Chicago) President-elect Obama resigned his U.S. Senate seat.
 

Gov. Blagojevich Arrested By The FBI

Dec. 9, 2008 (Chicago)

• Gov. Blagojevich and Harris arrested on federal corruption charges, alleging that they conspired to obtain financial benefits in return for Obama’s Senate seat. Chicago U.S. Attorney Patrick J. Fitzgerald said that the governor was caught “in the middle of . . . a political-corruption crime spree;” “his conduct would make Lincoln roll over in his grave;” and the governor took the state to “a truly new low.”
• Illinois Senate President Emil Jones (D-Chicago) and Illinois House Speaker Michael Madigan (D-Chicago) said they would call the General Assembly into session to pass legislation on a special election to fill Obama’s seat.

Dec. 14, 2008 (NBC’s “Meet The Press”)

• Lieutenant Governor Pat Quinn: “[Recently] . . . I saw a bill . . . that would provide for a temporary appointment to the U.S. Senate until we could have a special election. I am concerned that we always have two Senators from Illinois representing us in Washington, and I think it’s very important that whoever is governor get an opportunity to appoint at least a temporary person until an election could take place.”
• Illinois Attorney General Lisa Madigan: “I think that’s [a special election] the appropriate way to go at this point . . . . That’s the best thing for the people of the state is to have a special election, have somebody put in that position legitimately by the people.”

Dec. 21, 2008 (Chicago) Quinn told a Chicago TV station that, because of the pending corruption charges, “there’s no way” that Blagojevich can appoint someone to the vacant Senate seat.

Dec. 26, 2008 (Chicago) Gov. Blagojevich’s attorney called Burris about the Senate seat. Burris replied, “[S]hould Governor Blagojevich offer the appointment . . . , I would accept.”

Dec. 28, 2008 (Chicago) Gov. Blagojevich offered Burris the Senate seat and he accepted.

Dec. 30, 2008 (Chicago)

• Gov. Blagojevich announced his appointment of Burris to Obama’s vacant seat despite objections from Democratic Senate leaders that they would not seat anyone appointed by the disgraced governor. Blagojevich called Burris a man of “unquestioned integrity” and urged the public not to “allow the allegations against me to taint this good and honest man.”
• Lt. Governor Quinn, next in line to be governor, said the Burris appointment was “an insult to the people of Illinois” and urged the public to “stand firm” against the governor’s action.

Senate Democrats Will Not Seat Burris

Dec. 30, 2008 (Washington, D.C.)

• Senate Democrats said in a written statement, “it is truly regrettable that despite requests from all 50 Democratic Senators and public officials throughout Illinois, Gov. Blagojevich would take the imprudent step of appointing someone to the United States Senate who would serve under a shadow and be plagued by questions of impropriety.”
• Senator Majority Leader Harry Reid (D-NV) and Assistant Majority Leader Dick Durbin (D-IL) issued a joint statement reiterating their opposition to seating any senator named by Blagojevich: “This is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat. Anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic caucus.”
• President-elect Obama sided with the Senate leadership, saying in a written statement that Blagojevich’s decision was “disappointing” and that he should resign so a “lawful and appropriate process of succession” can take place.

Circa Jan. 3, 2009 (Springfield) Illinois Secretary of State, Jesse White, refused to sign Blagojevich’s nomination certificate.

Jan. 4, 2009 (Washington, D.C.) Secretary of the United States Senate rejected Blagojevich’s nomination certificate because it did not bear White’s required signature.

Burris’ First Version Of His Contacts With Gov. Blagojevich’s People

Jan. 5, 2009 (Chicago) Burris sent an affidavit to House Majority Leader Representative Barbara Flynn Currie (D-Chicago), chairperson of the Illinois House’s Special Investigative Committee, stating: “Prior to the December 26, 2008 telephone call from [Gov. Blagojevich’s attorney] there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.”

Jan. 6, 2009 (Washington, D.C.) Burris denied entrance into the U.S. Senate.

Jan. 7, 2009 (Washington, D.C.) Senators Reid and Durbin meet with Burris; flip-flop on their vow to block his appointment; and tell Burris that he must persuade the Illinois House Impeachment Committee that there was nothing improper about his appointment. (So much for the principles that “anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois . . . and
. . . will not be seated.”)

Burris’ Second Version Of His Contacts With Gov. Blagojevich’s People

Jan. 8, 2009 (Springfield) Burris testified before the Illinois House Impeachment Committee, which is considering the impeachment of Governor Blagojevich:

• Illinois Representative Jim Durkin (R-Western Springs): “[P]rior to his arrest, did you have any conversations with the Governor about your desire to be appointed to the seat?” Burris: “No.”
• Durkin: “Did you talk to any members of the Governor’s staff or anyone closely related to the Governor, including family members or any lobbyists connected with him, including let me throw out some names, John Harris, Rob Blagojevich, Doug Scofield, Bob Greenleaf, Lon Monk, John Wyma, did you talk to anybody who was associated with the Governor about your desire to seek the appointment prior to the Governor’s arrest?” Burris: “I talked to some friends about my desire to be appointed, yes.”
• Durkin: “I guess the point is I was trying to ask, did you speak to anybody who was on the Governor’s staff prior to the Governor’s arrest or anybody, any of those individuals or anybody who is closely related to the Governor?” Burris: “I recall having a meeting with Lon Monk about my partner and I [sic] trying to get continued business, and I did bring it up, it must have been in September or maybe it was in July of ’08 that, you know, you’re close to the Governor, let him know that I am certainly interested in the seat.”
• Representative Jil Tracy (R-Quincy) asked Burris to state the names of the friends Burris referred to earlier in his testimony. Burris replied that he spoke with his law partner and Lon Monk.
• Tracy: “So you don’t recall that there was anybody else besides Lon Monk that you expressed that interest to at that point?” Burris: “No, I can’t recall. Because people were coming to me saying Roland, you should pursue that appointment, you’re qualified . . . .”

Jan. 9, 2009 (Springfield) The Illinois House of Representatives impeached Gov. Blagojevich, 114-1. Representative Deborah L. Mell (D-Chicago), Blagojevich’s sister-in-law, is the lone dissenting veto. Secretary of State White signs Burris’ nomination certificate.

Democrats Flip-Flop and Burris Seated in Senate

Jan. 12, 2009 (Washington, D.C.) Senators Reid and Durbin issued a joint release: “Mr. Burris has provided sworn testimony before the Illinois House Committee on Impeachment regarding the circumstances of his appointment.” “As we had outlined to Mr. Burris, a path needed to be followed that respects the rules of the Senate. We committed to Mr. Burris that once those requirements were satisfied, we would be able to proceed. We are pleased that everything is now in order, we congratulate Senator-designee Burris on his appointment and we look forward to working with him in the 111th Congress.”

Jan. 15, 2009 (Washington, D.C.) Burris sworn in as the junior Senator from Illinois.

Jan. 29, 2009 (Springfield) The Illinois Senate convicted Gov. Blagojevich of corruption and removed him from office, 59-0. Lt. Gov. Quinn sworn in as the new governor.

Burris’ Third Version Of His Contacts With Gov. Blagojevich’s People

Feb. 4, 2009 (Chicago) Burris sent an affidavit to Representative Currie, supplementing his testimony before the Impeachment Committee, admitting: (1) his June 27, 2008 discussion with Scofield and/or Wyma about his interest in Obama’s Senate seat; (2) his conversation with Rob Blagojevich in October-November, 2008 about fund-raising for Gov. Blagojevich; and (3) his conversations with Harris about Obama’s replacement in October-November 2008.

Feb. 14, 2009 (Chicago) The Chicago Sun-Times and Chicago Tribune reported: Currie says she received Burris’ second affidavit on February 6, 2009, assumed that it was merely a routine response and thus did not immediately read or share it with the committee; Burris claims that he made the second affidavit after reading the transcripts of his testimony before the Impeachment Committee and realized that his answers were incomplete.

Feb. 15, 2009 (Chicago) Burris held a press conference and declared that he is not guilty of lying to the Illinois House Impeachment Committee: “I did not donate one single dollar nor did I raise any money or promise any favors for the governor;” “Anyone who suggests otherwise or would insinuate that my testimony in person or in writing is anything other than fully compliant with the committee and consistent with the truth is simply playing partisan politics.”

Feb. 16, 2009 (Chicago) Attorney General Madigan: “I encourage the Sangamon County state’s attorney [John Schmidt] to take a closer look at [Burris’ contradictory statements] in the interest of truth, integrity, and transparency.”

Feb. 17, 2009 (Springfield/Washington, D.C.) The Sangamon County State’s Attorney launched a criminal perjury investigation into Burris’ inconsistent statements. In Washington, the United States Senate Ethics Committee also launched an investigation into his comments.

Gov. Quinn Calls On Burris To Resign

Feb. 20, 2009 (Chicago) Quinn called on Burris to resign: “To step aside would be a heroic act, and I ask Roland to do it;” he made “a big mistake, a gigantic mistake” in accepting the appointment three weeks after Gov. Blagojevich had been arrested.

Feb. 25, 2009 (Chicago) Attorney General Madigan issued a legal opinion concluding that: (1) a governor’s appointments to fill Senate vacancies should be considered temporary until an election is held; and (2) Illinois could enact a special-election law that would effectively force Burris from office.

Feb. 26, 2009 (Chicago)

• Governor Quinn said that if Burris does not step down within the next two weeks, he wants lawmakers to send him a bill to set up a special election that could remove Burris from office; and that he has spoken with the two top Democrats in the General Assembly about the possibility of moving ahead with such legislation.
• A group of African-American Chicago aldermen defended Burris and threatened those who call for his resignation: Aldermen Freddrenna Lyle (6th), city chairman of the Cook County Democratic Organization: “I would just suggest to those people who seek to run in the wards of the City of Chicago where there are people of color living that they should tone it down, because some of us are taking notes.” “Those people will run at their peril.” Ald. Carrie Austin (34th), chairman of the City Council Black Caucus, said all caucus members back Burris and called for others to back off.

Feb. 26, 2009 (Chicago) Two Illinois registered voters, David Kindler and Gerald Judge, sued Gov. Quinn in the Chicago federal district court alleging violation of their rights guaranteed by the Seventeenth Amendment to the United States Constitution establishing election of senators by popular vote. They sought an injunction requiring Quinn to set a date for a special election.

Mar. 3, 2009 (Chicago) Quinn, “My position is well-known. I think there should be a special election. You cannot have a special election unless the incumbent resigns. The incumbent has said he will not resign.” Quinn’s flip-flop came after he met with a group of African-American elected officials amid warnings by black ministers and Chicago aldermen to stop criticizing Burris. Quinn denied that concerns about his relations with the African-American community and his own political future (the 2010 gubernatorial election) prompted him to drop his call for special election legislation.

Mar. 9, 2009 (Chicago) Gov. Quinn, represented by Attorney General Madigan, who also previously had supported a special election, moved to dismiss the Illinois voters lawsuit, contending that a special election is not consistent with current Illinois law.

Apr. 16, 2009 (Chicago) The federal district court granted the defendants’ (Gov. Quinn and Burris) motions to dismiss and denied the plaintiffs’ request for a preliminary injunction. (The plaintiffs appealed.)

Burris Avoids State Perjury Charges

June 19, 2009 (Springfield) In a letter addressed to House Speaker Madigan, Sangamon County State’s Attorney says: “In sum, based upon our review of the facts and the applicable law, there is insufficient evidence to charge Senator Roland Burris with perjury.”

June 19, 2009 (Washington, D.C.) Burris praises the State’s Attorney’s decision: “This matter has now been fully investigated. I cooperated at every phase of the process, and as I have said from the beginning, I have never engaged in any pay-to-play, never perjured myself, and came to this seat in an honest and legal way. Today’s announcement confirms all that.”

But Burris Is Admonished By The United States Senate

Nov. 20, 2009 (Washington, D.C.) The Senate Select Committee on Ethics sent Burris a “Public Letter of Qualified Admonition” stating: “The Committee found that you should have known that you were providing incorrect, inconsistent, misleading, or incomplete information to the public, the Senate, and those conducting legitimate inquiries into your appointment to the Senate.”

• “Your sworn affidavit and sworn testimony before the Illinois House of Representatives were inconsistent, incomplete and misleading.”
• “Your shifting explanations about your sworn statements appear less than candid.”
• “Your November 13, 2008 phone call with Robert Blagojevich, while not rising to the level of an explicit quid pro quo, was inappropriate.”
• “Again, the Committee has found that your actions and statements reflected unfavorably on the Senate and issues this Public Letter of Qualified Admonition.”

Later on Nov. 20, 2009 (Washington, D.C.) Burris responds: “I am pleased that after numerous investigations, this matter has finally come to a close. I thank the members of the Senate Ethics Committee for their fair and thorough review of this matter, and now look forward to continuing the important work on behalf of the people of Illinois.” (Contrary to Burris’ earlier statement, the Ethics Committee was apparently not “playing partisan politics”.)

Federal Appeals Court Orders Special Election

June 16, 2010 (Chicago) The United States Court of Appeals for the Seventh Circuit ruled in the Judge appeal:

• “The vacancy-filling provision in the second paragraph of the Seventeenth Amendment imposes two requirements. First, every time that a vacancy happens in the state’s senate delegation, the state must hold an election in which the people elect a permanent replacement to fill the vacant seat. Second, the executive officer of the state must issue a writ of election that includes a date for such an election to take place. Whether the vacancy is first filled by temporary appointee, as permitted by the proviso, is a matter left up to the state and is governed by state law.”
• “[T]he second paragraph of the Seventeenth Amendment establishes a rule for all circumstances: it imposes a duty on state executives to make sure that an election fills each vacancy; it obliges state legislatures to promulgate rules for vacancy elections; and it allows for temporary appointments until an election occurs.”

In effect, the Court ordered that the special election be held on November 2, the same date as the general election, and remanded the case to the district court for implementation of its decision.

June 23-July 29, 2010 (Chicago) The district court judge held five hearings about the ground rules for the special election. As these hearings progressed, two things became clear: (1) Illinois voters would cast two votes for Obama’s vacant senate seat on November 2 – one for the person who would serve about two months and the other for the person who would serve a six-year term and (2) Burris would not be eligible to run to finish Obama’s Senate term (the remaining two months).

Tarnished Sen. Burris Won’t Leave Office Gracefully

July 29, 2010 (Chicago) Disgruntled because he would not be eligible to run in the special election, Burris filed objections to the anticipated district court order, claiming that he “was given no say when the proposed plan was crafted by lawyers for Gov. Patrick J. Quinn and two voters who sued to force that election;” “By denying the senator the opportunity to be heard, and issuing an injunction that would bar him from running in an election for which he is otherwise qualified to run, this court would be denying the senator his right to due process of law under the 14th Amendment.” A spokeswoman for the Illinois attorney general’s office said the district court had previously rejected Burris’ objections: “Sen. Burris has been represented throughout this proceeding, has raised his objections to the court and the court disagreed.”

Aug. 2, 2010 (Chicago) The district court entered an order governing the special election that provided:

• “[N]o primary is necessary to select the candidates to appear on the ballot . . . .”
• “[T]he established political party candidates who will appear on the ballot . . . shall be those candidates who won their respective party primaries to run for the full six-year U.S. Senate term in the General Election; and the new political party candidates and independent candidates who will appear on the ballot . . . shall be those candidates who have filed nomination petitions, who meet the signature and other applicable requirements to participate in the race for the full six-year U.S. Senate term in the General Election under . . . the Illinois Election Code and who are duly certified for that race by the Illinois State Board of Elections.”
• “The Governor’s temporary appointee [Burris] shall continue his period of service in the U.S. Senate until the winner of the special election has taken the oath of office to serve out the remainder of former Senator Obama’s term.” (Of course, Burris appeals.)

Sept. 24, 2010 (Chicago) The Seventh Circuit affirmed the district court’s order and concluded: “In this case, the balance of hardships favors the plaintiffs, who – along with the rest of the citizens of Illinois – will see their Seventeenth Amendment rights vindicated in a special election. For Senator Burris, it means only that he will finish his temporary appointment in the Senate two months earlier than he may have expected.”

Nov. 2, 2010 (Illinois) Republican U.S. House Representative Mark Kirk won the special and general senate elections.

Nov. 29, 2010 (Washington, D.C.) Kirk sworn in to replace Burris as Illinois junior Senator.

Burris leaves an embarrassing legacy as an interim United States Senator: Appointed by a disgraced governor and admonished by the Senate Select Committee on Ethics for giving “inconsistent, incomplete and misleading” testimony to the Illinois House Impeachment Committee about how he got the job, Burris spent his entire 22-month term in federal courts trying to legitimize his appointment and to extend his term two months.

However, many other Illinois politicians should also be embarrassed by their unprincipled performances in this disgraceful saga.

Roy E. Hofer, a partner in Brinks, Hofer, Gilson & Lione, Chicago, Illinois was president of The Chicago Bar Association in 1988-89. Roshni D. Patel, a second-year student at The University of Iowa College of Law, contributed to this article.

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