If witnesses can’t talk, is GOP investigating Mike Madigan or putting on a show trial?

During both the impeachment proceedings against Gov. Rod Blagojevich and the disciplinary proceedings that led to the expulsion of state Rep. Derrick Smith, D-Chicago, the Illinois House was able to call witnesses.

But because of ongoing federal investigations in both instances, the U.S. attorney limited what some of those witnesses could be asked. Blagojevich had been charged with multiple felonies and Smith had been caught on audio accepting a cash bribe.

“We couldn’t call certain witnesses because we couldn’t ask them anything but their name,” explained an attorney who worked on both cases.

Last week, the House Republicans informed a Chicago newspaper that U.S. Attorney John Lausch had granted permission to call witnesses to a special House committee taking a look at whether disciplinary proceedings should be started against House Speaker Michael Madigan over his alleged role in a bribery scheme detailed in ComEd’s Deferred Prosecution Agreement. The company, you certainly know by now, agreed to pay a $200 million fine for its alleged role, although it has entered a plea of “not guilty” for the time being.

Not so fast, said the committee’s Democratic chairman, Rep. Chris Welch, D-Hillside. The U.S. attorney, Welch claimed, “requested we refrain from seeking any materials or testimony related to [ComEd’s deferred prosecution agreement] that is still confidential or anything in the possession of the federal government.”

In other words, Welch said, “we can call witnesses, but we can’t really ask them any questions.”

The committee’s next step was to draft a letter memorializing the conversation with Lausch and send it to Lausch’s office for a co-sign.

But Welch accused the House Republicans of playing political games and the Republicans were shocked, shocked that someone would suggest such a thing, and drafting a bipartisan response proved impossible.

So, the two parties, divided 3-3 on the committee, each drafted their own, conflicting letters.

Lausch responded to the two letters shortly thereafter.

“We hope this clarifies the positions we described in our Sept. 14 call,” he wrote.

Nope. Not even close.

The House Republicans issued an immediate statement claiming that Lausch’s response had given the committee “the green light to pursue all avenues of the investigation, including testimony and documents, that were articulated in the petition.” The petition forcing the creation of the committee was filed by House Republican Leader Jim Durkin and focused mainly on ComEd’s deferred prosecution agreement.

Welch, the committee’s chairman, an attorney and strong ally of Madigan, claimed his reading of Lausch’s letter was that “information underlying the deferred prosecution agreement beyond what is already public could be met with objection by federal investigators.”

Lausch did reserve the right to object to specific testimony or documents. But he also said his office didn’t object “generally” to the committee’s “pursuit of testimony or production of documents.” The witnesses just couldn’t say whether they shared that information with the government or what they learned from federal investigators.

“The feds say we can ask our own questions as long as we don’t ask ‘Did you tell the feds XYZ?” is how one Republican put it.

So, I assume the Republicans could ask Madigan if he ever tried to get anyone appointed to ComEd’s board of directors, or if he knew that people were being hired on contract with ComEd’s money to do no-show jobs. But would he answer the questions or even appear?

“If the GOP’s objective is to get Madigan sitting in front of them unable to answer questions, then they won that one,” said one attorney close to the House Democrats. “If the objective is to actually do an investigation, then they lost.”

We’ll see.

Welch set the next hearing for Sept. 29 in Springfield. He also said he sent letters requesting testimony from Madigan and everyone on the House Republicans’ witness list.

Rich Miller also publishes Capitol Fax, a daily political newsletter.

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