Fitzgerald Should Keep His
Opinions to Himself
As in the Libby case, his behavior is 'appalling.'
December 15, 2008
The Wall Street Journal
Illinois Gov. Rod Blagojevich's "conduct would make
Lincoln roll over in his grave," according to U.S. Attorney Patrick
Fitzgerald. But Mr. Fitzgerald's statement would, at the very least, make
well-regarded former Attorney General Robert Jackson flinch in his. Almost
seven decades ago, Jackson admonished a meeting of U.S. attorneys that they
should be dedicated "to the spirit of fair play and decency . . . . A
sensitiveness to fair play and sportsmanship is perhaps the best protection
against the abuse of power . . . ."
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.
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.
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 as "appalling." He opined that the
governor "has taken us to a new low," while going on a "political corruption
Additionally, Mr. Fitzgerald violated another
ethical mandate under Justice guidelines for prosecutors: He is supposed to
"exercise reasonable care to prevent" law enforcement -- in this case the
FBI Agent -- from making the same type of extrajudicial statements. Mr.
Fitzgerald exercised no care.
Special Agent Rob Grant volunteered that when he
arrived in Illinois four years ago, he was asked by the media whether
Illinois is the "most corrupt state in the United States." He then answered
that four-year-old question claiming, "[I]t's one hell of a competitor." Mr.
Grant did not stop there. He revealed that the FBI agents who participated
in the case were "thoroughly disgusted and revolted by what they heard."
Well, weren't we all? Even though the governer's
maneuvering to sell the Senate seat most likely had not yet crossed the line
to become criminal behavior, it was base, sordid conduct. But those thoughts
and words are for the rest of us to express before the trial. It is
unethical for those who are government prosecutors to do so.
Ms. Toensing, a former Justice Department
official, is a lawyer in Washington.