As described here and here, Madigan is relying on Article V, Section 6 of the Illinois constitution: "If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed." So she needs to argue that Blagojevich is disabled within the meaning of that text.
Here's the discussion from the transcript:
Q Did you give any consideration to the intent of -- the intent of the law as framed by the constitutional convention, whether it was meant for a political or legal crisis like this or simply for some kind of, you know, medical or emotional issue?There's no follow-up on that.
MS. MADIGAN: I think the question you're getting at is, how is disability or is disability defined correct? And so yes, we did. It's addressed in our briefs.
We would look to the fact that the term disability legally is very broad, that it is not simply isolated to a physical or mental disability. And you can read all about that in our pleadings.
Madigan is asked about whether this case would "set a dangerous precedent" -- and she seems not to understand the concept:
Q General, is there a way to prevent other people, whoever might be AG in the future, from -- any protections to prevent others from using this law -- since this is the first time to have a governor sort of declared disabled -- to sort of have it be done sort of when the circumstances might not be as extraordinary? Are those protections there, or could this be filed at any -- could this...So the safeguard against the AG's abuse of power is that the court will have the role of deciding? How can it be the court's role to make the final call about things that belong in the realm of impeachment? Why do constitutions put impeachment trials in legislatures? Because courts are ill-suited to such decision-making.
MS. MADIGAN: I'm still not understanding your question.
Q Are there enough protections in place to stop someone from doing what you're doing in the future?
Q For political ends.
Q From abusing the --
MS. MADIGAN: Oh, I'm sorry.
Q (Off mike) -- abusing the AG authority.
MS. MADIGAN: Yes. And here's one of the protections, as I mentioned. The Illinois Supreme Court has total discretion as to whether or not to even hear this matter. So the Illinois Supreme Court, Judicial Branch, serves as a check on the executive branch in the circumstance.
Consider this discussion, from the U.S. Supreme Court, about why the Framers of the United States Constitution gave the Senate the sole power to try impeachments:
The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to Try all Impeachments." Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature--the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.In the Illinois case, you don't even have a legislative impeachment. You have a lower executive branch official, the Attorney General, bringing the accusation, and the state supreme court is asked to make the final call, deciding by fiat that a democratically elected Governor should be thrown out of office.
Now, there is that state constitutional provision -- Article V, Section 6 -- but the question is how broadly to interpret "other disability," a term that appears on a list that includes "conviction on impeachment." Clearly, "other disability" ought to be defined narrowly so that it does not obliterate the safeguards of the impeachment process.
At the end
Q I know you say that you haven't been thinking about politics at all, but there have obviously been a lot of questions about politics, and there wouldn't be questions about politics unless your political future was considered very bright and in play here. Given the fact of your possible interest in being governor, given the fact that you've been mentioned as a possible Senate replacement for Barack Obama, was any consideration given to your removing yourself from this issue because of a possible perception, if not reality, of conflict of interest?Well, the answer is meaningless. The question says it all.
MS. MADIGAN: No. And let me make two further statements. One is I never expressed any interest in even being considered for the U.S. Senate vacancy. I never contacted or talked to any -- the governor or anybody in the governor's office about that.
In addition, I am supporting putting the lieutenant governor in to serve as at governor of the state of Illinois. I think that is in the best interests of the people of this state. And I am happy to serve as the attorney general of this state. And I will continue in that role to do what is best for the people of this state.
AND: Keep in mind that the legislative impeachment process is something under the control of Madigan's own father.
Here's a Sun-Times article headlined "Why is Michael Madigan waiting to impeach Blagojevich?"
House Speaker Michael Madigan turned heads last spring by admitting his staff had researched impeaching Gov. Blagojevich, then followed up with a fall memo to Democratic candidates advocating impeachment.What a misguided notion of how to win glory!
So why on the eve of lawmakers returning to Springfield to address a full-blown political crisis won't the powerful Southwest Side Democrat commit to impeaching a man regarded by some as the most corrupt state officeholder in modern Illinois history?...
Even more baffling is the fact that plenty of votes exist in the House to get the job done.
On Friday, Cross had a conference call with his 52-member GOP delegation and said "at least" 45 favored launching impeachment proceedings immediately....
If Blagojevich resigns this week, Madigan's noncommittal stance on adding impeachment to the agenda would make perfect sense because the issue would be moot.
But if Blagojevich stays put and his saga drags out, then questions inevitably will grow louder about whether delaying impeachment is a tactic by Madigan not to divert political thunder from his daughter, Attorney General Lisa Madigan....
"The speculation is that the speaker is sitting back on this so Lisa can take the lead and get ownership on the issue," said one House member who favors impeachment but requested anonymity.