Fitzgerald Should Keep His Opinions To Himself

by Victoria Toensing - December 13th, 2008 - Wall Street Journal

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.

This is what our criminal justice system has become. An abusive tyrannical power to destroy people at the whim of a prosecutor. What was done to Scooter Libby was atrocious and evil. No matter what this Governor has done, it is most important that the abusive actions by this prosecutor and the FBI agent Rob Grant be condemned too. I am just as concerned about their abuse of power as I am of the abuse of power of the Governor. Maybe more so.

The absolutely appalling conduct of Fitzgerald needs to be rejected by those of us who care about the return to a system of justice. Scooter Libby was destroyed over the opinion of what was in his heart when he made a statement where he might have mis-remembered a phone conversation with a reporter. However the major isssue that Fitzgerald ignored is this reporter hated the regime Libby was a part of. He therefore could well have had malice against Libby. Neither the prosecutor nor the jury took that into consideration. Since there was no crime, the claimed mis-statement was in furtherance of nothing. No crime had been committed and it was all about whose memory was right. Richard Armitage was the leaker and Fitzgerald knew that. Armitage was not a person that Scooter Libby was trying to protect. Scooter Libby would, since he was on the opposite side of the political spectrum, have helped to expose him if he had known, not hidden the fact.

It is therefore clear that Fitzgerald spent tens of millions of dollars to frame Scooter Libby, just because he could. No matter how reprehensible the conduct of this Governor, the question we have to ask ourselves is whether this personal glory seeking is the kind of justice this nation wants. I believe it is equally important to rid ourselves of people like Fitzgerald. He is an evil tyrannical vindictive little man.