Attorneys for Illinois Democrat Governor Rod Blagojevich have filed a motion seeing to have federal prosecutor Patrick Fitzgerald removed from the case, alleging that he made inappropriate comments about Blagojevich during his December press conference announcing the criminal complaint.This development is not entirely unexpected given Fitzgerald's statements. Moreover, this is not the first time Fitzgerald's actions have come under fire -- his behavior in the Libby perjury-trap prosecution related to the Plame affair has been severely criticized by many and discussed here (link); for example, 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.”
The Chicago Tribune Reports (link):
In announcing Gov. Rod Blagojevich's arrest on corruption charges last month, U.S. Atty. Patrick Fitzgerald was more outspoken than usual when it came to the stunning allegations that the governor had tried to sell a U.S. Senate seat.
"Gov. Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree," the typically reserved Fitzgerald said. The conduct "would make [ Abraham] Lincoln roll over in his grave," he said.
On Thursday [January 8], it was revealed that Blagojevich's defense team, in a sealed motion, is trying to turn the hard-charging prosecutor's words against him, asking a federal judge to remove Fitzgerald and others in his office from prosecuting the case.
Attorney Joel Bertocchi said he couldn't recall seeing Fitzgerald as hot under the collar as he was at the Dec. 9 news conference, but he [thought] that the governor's lawyers probably aren't really hoping that the U.S. attorney will be tossed off the case. What's more likely is that the Blagojevich defense is making a record to argue later that the jury pool has been tainted and the trial should be moved to another state.Former Justice Department official Victoria Toensing observed Fitzgerald’s behavior at the December 9, 2008, news conference and did not like what she saw. She wrote the following in the Wall Street Journal on December 13, 2008, in a commentary titled Fitzgerald Should Keep His Opinions to Himself -- As in the Libby Case, His Behavior Is 'Appalling.' (link):
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. In the vernacular of all of us who practice criminal law, that means the prosecutor may not go "beyond the four corners" -- the specific facts -- in the complaint or indictment. He may also provide any other public-record information, the status of the case, the names of investigators, and request assistance. But he is not permitted to make the kind of inflammatory statements Mr. Fitzgerald made during his media appearance.
What's more, Mr. Fitzgerald is a repeat offender. In his news conference in October 2005 announcing the indictment of Scooter Libby for obstruction of justice, he compared himself to an umpire who "gets sand thrown in his eyes." The umpire is "trying to figure what happened and somebody blocked" his view. With this statement, Mr. Fitzgerald made us all believe he could not find the person who leaked Valerie Plame's name as a CIA operative because of Mr. Libby. What we all now know is that Mr. Fitzgerald knew well before he ever started the investigation in January 2004 that Richard Armitage was the leaker and nothing Mr. Libby did or did not do threw sand in his eyes. In fact -- since there was no crime -- there was not even a game for the umpire to call.
In the Libby case, rather than suffer criticism, Mr. Fitzgerald became a media darling. And so in the Blagojevich case he returned to the microphone. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct is "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."
I am as repulsed by the governor's crude statements -- captured on tape by investigators -- as anyone. And 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.As I said before, in Chicago even the federal prosecutor needs watching. Somewhere Chicagoan Mike Royko is smiling. He loved the great theater that is the tragi-comic politics of Chicago and its state Illinois.
John M Greco
