Tuesday, December 16, 2008

As Prosecutor Fitzgerald Pursues Blagojevich, Who Watches Fitzgerald?

Patrick Fitzgerald is, of course, the federal prosecutor in Chicago who has brought charges against Illinois Governor Rod Blagojevich. But as much as we are glad to see corruption rooted out from wherever it hides, let us be mindful of the propriety of Fitzgerald’s behavior, past and present.

Fitzgerald was the special prosecutor who secured a conviction last year of Vice President Cheney’s chief of staff Scooter Libby in the notorious Plame affair. Many people believe he acted atrociously and unethically in that case.

In an effort to politically damage the Bush administration, Democrats ginned up a fake controversy charging that VP Cheney and/or Bush’s key advisor Karl Rove “blew the cover” of a covert CIA agent for their own political purposes related to the Iraq war. For the Democrats, it was opportunity to hit at Bush – a political trick of high theater. Democrats and their media arm pressured the bumbling Bush administration, rarely able to defend itself competently, into appointing a special prosecutor, and it picked Patrick Fitzgerald, the New Yorker who earlier had been appointed by Bush as federal prosecutor in Chicago, particularly upon the recommendation of “maverick” one-term Republican Illinois Senator Peter Fitzgerald (no relation that anybody knows of). Bush did not know to watch out for mavericks.

Fitzgerald was tasked with pursuing the leak to the press of CIA employee Valerie Plame, which would have been illegal if she was a covert agent as supposed. Fitzgerald soon determined three key facts: that Plame was not covert (if an “agent” at all); that the leak to hurt Bush came from a rival center of power in the Bush administration – Colin Powell and his subordinate Richard Armitage at the State Department; and that there was no crime. Nevertheless, he wanted to bag a big fish and went after Cheney and Rove, and two years and millions of dollars later wound up indicting only one person -- Cheney’s chief of staff Scooter Libby for, as the Wall Street Journal put it, “contradictions between his testimony and the testimony of two or three reporters about what he [Libby] told them, when he told them, and what words he used.” All of this had nothing to do with the leak of Plame’s name, the whole point of Fitzgerald’s investigation, which Fitzgerald knew wasn’t a crime and was committed by someone else. The Libby prosecution was a sideshow to a political witch hunt that had failed.

If Fitzgerald indicted anyone, why not Armitage, the actual leaker of Plame’s name? Answer – because “leaking” her name was not a crime, and furthermore, he and Powell were in favor with the liberal media because of their falling out with Bush. So Fitzgerald stayed away from Powell and Armitage and pursued those who the anti-Bush media wanted pursued – Rove and Cheney; and when it became clear he couldn’t get them on anything, he finally settled for Libby.

Investor’s Business Daily in an editorial of August 29, 2006, said: [I]t’s hard to see anything but politics as the motivation for Fitzgerald’s handling of the Plame affair…. Fitzgerald knew in the early days of his politicized witch hunt that no crime was committed… From top to bottom, this has been one of the most disgraceful abuses of prosecutorial power in this country’s history.” James Taranto wrote in the Wall Street Journal on September 5, 2006: “It seems that Fitzgerald and the State Department covered up a non-crime, and the effect was to keep alive the illusion that it was a crime…. the whole thing stinks.” Jed Babbin wrote on September 18, 2006, at The American Spectator: “It is an entirely separate scandal – one probably including real criminal conduct – that the Fitzgerald investigation was even begun despite knowledge that no crime had been committed. Libby’s crime, if there was one, was manufactured by Fitzgerald in the grand jury room.”

Fitzgerald’s behavior as a prosecutor is again in question in the Blagojevich case. Yesterday’s Opinion Journal at the Wall Street Journal online (link) carried a commentary by former federal prosecutor Victoria Toensing titled “Fitzgerald Should Keep His Opinions to Himself -- As in the Libby case, his behavior is 'appalling'." In it , she wrote:
Illinois Gov. Rod Blagojevich's "conduct would make Lincoln roll over in his grave," according to U.S. Attorney Patrick Fitzgerald. But [it’s] Mr. Fitzgerald's statement [that] would…. In the Dec. 9 press conference regarding the federal corruption charges against Gov. Blagojevich and his chief of staff, Mr. Fitzgerald violated the ethical requirement of the Justice Department guidelines that prior to trial a "prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." The prosecutor is permitted to "inform the public of the nature and extent" of the charges… But he is not permitted to make the kind of inflammatory statements Mr. Fitzgerald made during his media appearance…. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct as "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."
Toensing wrote that “although I am a Republican, I am first an officer of the court. Thus, I take no joy in a prosecutor pursuing a Democratic politician by violating his ethical responsibility. I fear for the integrity of the criminal justice system when a prosecutor breaks the rules.”

Déjà vu. In Chicago even the federal prosecutor needs watching.

John M Greco