Patrick Fitzgerald: A Skeptical View

[McCamy Taylor]

The indictment of Gov. Blagojevich of Illinois stinks. From the moment that federal prosecutor and darling of the left Patrick Fitzgerald presented his charges as if he were the impresario of a three ring media circus, something (many things) about this case has struck me as off .

I am going to attempt the near impossible----a logical discussion of a case which involves a man who has become a folk hero for many Democrats.

First, does Fitzgerald deserve his heroic status? Look at the results of the Plame case, which made his name and fortune. The matter was a serious one. A CIA agent who specialized in the proliferation of nuclear weapons was deliberately outed as payback, because her husband questioned the case for going to war with Iraq. The act was both petty revenge and an attempt to silence other administration critics. It caused the deaths of CIA contacts, it put CIA agents (including Ms. Plame) in danger and it blew CIA cover operations, setting back the agency’s work. It was an act of treason. We all know from the evidence in the case that Dick Cheney masterminded the outing, and that Karl Rove participated in the scheme and that White House employees helped to scrub e-mails as part of a cover up. Bush himself has claimed that he ordered the outing. And yet, what are the results of the long investigation? Journalists were threatened with jail or were jailed. And Scooter Libby was allowed to fall on his sword---to the general acclaim of the nation’s press and conservative community---before receiving an immediate pardon from his unnamed co-conspirator, George W. Bush. Fitz delivered a public tongue lashing to the people whom he claimed that he could not touch---oh, that must have hurt! For this, we proclaimed him the equivalent of the courageous prosecutor in Costa-Gravas’s film Z.

How many people on the left looked at the events which unfolded during the Plame investigation and Libby prosecution and considered another option? Fitz has a reputation as an attorney who is skillful with a jury. Does that mean he is also skillful with the press? When he gave the appearance that he was on the attack against the Bush administration, was that a deliberate stance, chosen so that critics of Cheney would be satisfied by an investigation that was essentially in house , Fitzgerald being a DOJ prosecutor? His aggressive public persona during that case assured that the outcome would be treated as fair by the public, even the left wing, the sector most likely to question the results. His repeated questioning of Rove before the Grand Jury offered hope to Democrats that he was seriously considering an indictment of Bush’s Brain, even though a pardon would be all but assured. His leak proof Grand Jury was portrayed as a model of prosecutorial discipline-----however, it benefited the Bush administration during the 2004 re-election campaign. Recall that Fitz was named Special Prosecutor in December 2003. Do you recall hearing anything about his investigation in 2004? No, the shit hit the fan after Rove stole the vote in Ohio and W. was safely sworn in. Here is the timeline of the investigation:

http://en.wikipedia.org/wiki/CIA_leak_grand_jury_investigation

Airforce One records are subpoenaed in 2004, then nada until the summer of 2005.

I am not one of those who believes that public shame is enough punishment for the elite. Having Fitzgerald stand behind a podium and imply that the Vice President is probably guilty, too is not justice. Rove and the others at the White House got off without a scratch. So, how did Fitz convince so many Democrats that he had delivered justice for Ms. Plame? Did the press like the idea of a David versus Goliath confrontation, especially with so many other things to be angry about, Katrina, the Downing Street Memos, warrantless wiretaps? Or maybe the press got some help from Fitz and the White House, both of whom wanted the public to think that the investigation was a hostile one, even though it ended very well for both of them----Fitz was a national hero and the White House lost only one soldier, who spent no time in prison.

I know that this is not what people thought that they were seeing, but this is the result of all that drama, and results are what count.

Now, I want to consider the results of this latest indictment. The first thing that strikes me is that Fitzgerald has presented a half assed case. If what he says is true, Gov. Blagojevich was in the middle of negotiations to sell a U.S. Senate seat to one of six contenders. Bidding had gone as high as a million dollars. The governor was wiretapped. The feds had evidence against the governor, but they still lacked compelling evidence against the would-be senators.

If you were a skillful, thorough federal prosecutor, the kind of guy who waited eighteen months in the Plame case before you got to any serious work, would not you continue the investigations until the senate hopefuls made their moves? Would not you want to catch the other politicians on tape, offering bribes? Why stop at catching one Illinois governor when you can rake in three or four Democratic politicians in a huge bribery scandal? Better yet, wait until Blagojevich actually accepts a cash payoff from someone in exchange for the nomination, then nab the senator-to-be after he has been named in the press and lauded by a bunch of Democrats including Obama. This would make the case extremely high profile. A federal prosecutor’s dream case, something that would assure that you would have to be kept on in the new administration, because it would touch on so many high ranking Democrats.

It is obvious that Fitz pulled the plug on this case prematurely, rushing an indictment of Blagojevich only, losing the opportunity to catch or entrap the other Democrats. Why? I can think of two possibilities. One, a Democrat caught wind of Blagojevich’s crazy scheme and threatened to go to the press with it in order to stop him from bringing any further scandal upon the Democratic Party. This would have forced Fitz’s hand. Note that Fitzgerald did not present the case to a Grand Jury. Maybe he was too rushed.

The other possibility is that he was pressured from above by his own Department of Justice. Many people have insisted that the indictment had nothing to do with Blagojevich’s decree that Illinois would stop doing business with Bank of America unless the 250 fired workers at Republic Windows and Door got their severance. How could they be related, since Fitz was investigating Blago already?

Consider this: what if the investigation were ongoing, but the timing of the indictment had everything to do with Bank of America?

Bank of America: You have to do something about this SOB Blagojevich!

Bush Administration Flunky (who wants a job with BofA when he leaves the White House): Don’t worry! He’s under investigation right now by the DOJ. I hear they will be indicting him real soon.

BofA: Real soon isn’t good enough! You know how bad the markets are now! Indict him tomorrow!

BAF: I’ll see what I can do!

BofA: If you don’t, we’ll go to the press and tell them that he is about to be indicted!

BAF: Don’t do that! I’ll talk to Mukasey. We’ll work something out.

If Bank of America threatened to go to the press and tell them that Blagojevich was a crook who was about to be indicted for trying to sell a senate seat or for one of the other crimes that Fitz had pinned on him and if the White House then called the prosecutor and told him Um, sorry, we kind of let the cat out of the bag and now Bank of America is about to go to the press with your information , Fitzgerald would have had no choice but to put together a rushed indictment and make his case----even if it meant losing the chance to make cases against any would be senators who were willing to pay for a senate seat.

Either of these two scenarios are possible. The one thing I am sure of is that Fitz’s hand was forced. Under ordinary circumstances, he would not have chosen to tie up this case like this. He would have let it play out and then he would have presented it to a Grand Jury. Nor would we have seen him act in this uncharacteristic fashion.

http://www.nytimes.com/2008/12/13/opinion/13coburn.html?_r=1&th&emc=th

In an editorial, the New York Times raises an issue that has concerned me from day one----why did Fitzgerald go out of his way to get on television and portray this alleged crime as one of the most heinous ever committed? This is not good behavior in a prosecutor and this is not the tight lipped Fitz that we all know from the Plame case.

LOST amid the understandable clamor over the charges against Gov. Rod Blagojevich of Illinois are questions raised by the pretrial public comments about the case by the prosecutor, Patrick Fitzgerald.

Snip

The United States Court of Appeals for the Ninth Circuit has emphasized that “a prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that defendants receive fair trials.” Another United States Court of Appeals has observed that “prosecutors sometimes forget that the prosecutor’s special duty is not to convict, but to secure justice.”

Snip

The court in which Mr. Blagojevich is charged, the United States District Court for the Northern District of Illinois, has a local rule mandating that a “lawyer shall not make an extrajudicial statement the lawyer knows or reasonably should know is likely to be disseminated by public media and, if so disseminated, would pose a serious and imminent threat to the fairness of an adjudicative proceeding.” The rule goes on to say that a public statement “ordinarily is likely to have such an effect when it refers to” a criminal matter and to “the character or reputation of the accused, or any opinion as to the accused’s guilt or innocence, as to the merits of the case, or as to the evidence in the case.” The American Bar Association’s model rules are similar, if not more restrictive.

Against this backdrop, it is hard to feel comfortable with Mr. Fitzgerald’s remarks in announcing the charges that Mr. Blagojevich’s conduct amounted to a “political corruption crime spree” and “would make Lincoln roll over in his grave,” that “the breadth of corruption laid out in these charges is staggering,” that Mr. Blagojevich “put a ‘for sale’ sign on the naming of a United States senator” and that his conduct was “cynical” and “appalling” and has “taken us to a truly new low.”

Again, several alternative scenarios would explain Fitzgerald’s lapse from usual professional conduct. In the first case, if Democrats had gotten wind of his investigation and destroyed it in order to protect their party, he might be hopping mad. In that case, his public statements might be an ill advised effort to salvage his case against Blagojevich and deliver some pay back to the Democratic whistleblowers who brought a halt to his wiretap investigation by turning in Blagojevich and threatening to turn it all over to the press themselves. This is entirely plausible. Any reasonable Democrat, upon hearing what Blagojevich was up to, would immediately seek to limit the damage to the party that would be inflicted if a number of senate worthy Illinois Democrats were coerced into offering bribes.

In the second case, if his own boss at the Department of Justice had forced him to bring an indictment prematurely because of pressure from Bank of America, Fitzgerald might be similarly angry and fearful that Blagojevich and the senate hopefuls would evade justice due to lack of evidence. Again, his public statements might have been made in the heat of frustrated anger.

As for the effect of the indictment and Fitz’s extraordinary public statements:

http://www.chron.com/disp/story.mpl/front/6161519.html

Illinois has billions of dollars in unpaid bills, including payments to Medicaid patients, hospitals, pharmacies, nursing homes and schools, and the state has approved $1.4 billion in short-term borrowing to keep cash flowing. But before the borrowing takes effect, Madigan said she has to certify that there is not any legal proceeding threatening the ability of the governor to hold his office.

In light of Friday's filing by her office, Madigan said she can't sign that.
"We will not be able to move forward on it until we have a different governor," Comptroller Dan Hynes said.

The state's inability to pay the bills has "a horrible ripple effect," the comptroller said. He said that pharmacies that count on state reimbursements could shut down, and suppliers could stop delivering food to Illinois prisons or letting state troopers buy gasoline. Businesses waiting for the state to pay its bills could lay off workers or simply go bankrupt, Hynes said.

"If our backlog gets worse, people are going to stop providing services," he said.

Come again? How can a state the size of Illinois not get a line of credit? With all its assets? What kind of bank loan requires you to declare that your governor is not under indictment? I thought that the money was controlled by the legislature and that it passed through the hands of a treasurer. Is this something that every state has to sign or have the banks included this just for Illinois, because of Blagojevich's legal problems---or his Bank of America problems? Is it ethical for lenders to threaten the health of sick people, because a man who has not been convicted yet does not want to admit that he is guilty? I would love to hear more about the creditors involved, but I am willing to bet that all I will be hearing about is Blago and Jesse Jackson Jr. and how well Obama knew each of them.

Now that the poorest, most vulnerable people of Illinois are being threatened, I am reminded of the way that Bush and Cheney attacked California during the first year of their administration. Cheney mocked that state as Enron was price gouging it---with the full cooperation of Enron's handpicked FERC officials. They had their media lackeys, like George Will, declare that no one except gays and commies lived out there, as if that made it all ok. Later, Gov. Davis was blamed for the Enron price gouging and recalled so that Ken Lay’s hand picked choice for governor, Arnold the Terminator could be installed instead. In the end, the Bush DOJ never did indict anyone for the Enron price gouging of California.

The recent attacks on Illinois as the “most corrupt state” and the calls for a special election for senator (Republicans have an advantage in special elections due to low turn out) and now this financial crisis combined with the three year long federal investigation of the state’s Democratic leadership suggest an attempt to insinuate more Republicans into Illinois politics. Since almost every elected official in the nation has done something wrong and will be caught if you wiretap him long enough, placing a skillful prosecutor like Patrick Fitzgerald in Illinois is bound to pay off if your goal is to disgrace the Democrats. That is the problem with the prosecutorial system. Good or bad, they are paid to get results.

When in doubt about why or how something happened, it helps to look at the broad picture. Though Fitzgerald may be a hero to many on the left, the Bush Department of Justice has a pattern of politically motivated prosecutions. Democrats are routinely the targets of wiretaps, fishing expeditions, bogus prosecutions for non-crimes. For instance, every single Black politician in the city government of Dallas, Texas was investigated by the FBI in a farce of a case that went on forever, before they finally pressed charges against one woman. I think she was accused of accepting some carpet or maybe it was a pair of drapes. Prosecutions of Democrats become media circuses, while cases against Republicans are typically handled in a more low key manner (if the press allows). As one attorney noted on MSNBC, Fitzgerald’s indictment of Blagojevich was full of information that the public would not usually get from a Grand Jury indictment, so in this way, he is following the usual Bush DOJ habit of adding fuel to the fire if the one charged is a Democrat.

If Fitz were not Fitz, I think that there were would be a lot of questions asked about this case----
And so, I think we should ask the question that William Butler Yeats asked “Who can tell the dancer from the dance?” Or, in a more familiar parlance, if it walks like a duck and quacks like a duck, maybe it is...a duck?