13 December 2008

Fitzgerald gets one right ... and then blows it

US Attorneys tend to change with the change of administrations, so Patrick Fitzgerald, US Attorney for Chicago who came on the national stage in the Valerie Plame kerfuffle, where the only crime that was committed was that Mr Libby remembered the order of events differently than others who were interviewed (perhaps intentionaly.) The "leaker" was never prosecuted, and it is highly doubtful that a crime was ever committed.

So I was going to comment on Tuesday that it was nice that Patrick Fitzgerald decided to (likely) end his career in the US Attorney's office going after a real crime. But he over-reached. The admittedly partisan Victoria Toensing comments:

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.

And, FWIW, Scooter Libby deserves a pardon before Bush leaves office.

And George Ryan does not.

In fact, I wonder if Blagojavich's indictment may not just shoot Ryan's request down.

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