Why Did Fitzgerald Act?
by Donald Devine
Issue 123 - January 7, 2009

Illinois Gov. Rod Blagojevich boorishly peddling Barack Obama’s Senate seat was ugly enough. But why did U.S. Attorney Patrick Fitzgerald act so soon, before the case was fully developed? As former top Department of Justice official Victoria Toensing noted, “The governor's maneuvering to sell the Senate seat most likely had not yet crossed the line to become criminal.”

The Attorney’s actions were very strange. Here you have an officer of the law - whose legal guidelines require that he not go beyond the specific public facts of the indictment - holding a colossal media conference telling the world Blagojevich was engaged “in a political corruption crime spree," that he "has taken us to a new low," that various of his actions were “appalling” (several times), and finally that his “conduct would make Lincoln roll over in his grave."

The guidelines specifically require that a “prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." What could Mr. Fitzgerald have said to the TV that would have been more prejudicial than what he actually intoned into every living room in America? As Ms. Toensing rightly concludes, this is unethical conduct pure and simple and deserves public condemnation.

While he was effusive with prejudicial comments, the U.S. Attorney was evasive on the central question of why the wiretaps were set in the first place. He answered with technical statements about how difficult they were to be secured, avoiding the question, why? Weeks after, it is still not clear when and why wiretaps were set. They apparently started with a complaint from person who was perturbed that she could not secure a low-level state contract. Thereafter, the investigation meandered widely over an incredible five years until it finally landed with a bug in the governor’s office. That this is a rather circuitous route perhaps explains why Fitzgerald did not give a direct answer. But it gets worse.

U.S. Attorneys are supposed to "exercise reasonable care" over the law enforcement officials used for the investigation, as Toensing also notes. Yet, at the same media event, FBI Special Agent Rob Grant volunteered a question to himself out loud, asking no one in particular whether Illinois was the "most corrupt state in the United States?”, answering his own question that if it is not the worst "it's one hell of a competitor." He gratuitously added that even his seasoned agents were "thoroughly disgusted and revolted by what they heard" as they listened to the wiretaps. Even if Grant’s agents are this sheltered, it is hard to argue his language was not prejudicial.

The U.S. Attorney has been there before, in the high-profile Scooter Libby case. To quote Toensing,

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.

But this is all lawyer stuff. Ms. Toensing is too much a professional attorney to draw practical conclusions. Why did Mr. Fitzgerald do this? His own explanation was twofold. He did not want to wait until the Senate replacement was already seated. Yet, as all now know, the Senate could have held up the nomination. His second explanation was, “I laid awake at night” worrying that the editors of the Chicago Tribune would be fired under pressure from Gov. Blagojevich before he could act. This seems even more unlikely since the U.S. Attorney was already working quietly with the newspaper. Was he just promoting himself? As an old bureaucratic insider, he undoubtedly knows that the first leaker earns the media’s favor and is protected by that status. He could be understood to be investing in some insurance with the media at the conference by laying awake in their interest.

As any student of the bureaucracy could tell the legalists, this strategy is especially helpful to guarantee one’s own job security. Once a federal prosecutor brings a case only the most foolhardy President or Attorney General would dismiss him. There is a long history of U.S. Attorneys doing so and successfully enhancing their job tenure, as Fitzgerald could not fail to notice. A few clever ones have used the publicity to run for higher office (and another high office in Illinois might soon be vacant)! If top U.S. officials even thought of appointing a replacement, as a new administration otherwise would be free to do, any prosecutor who wanted to keep his job could merely whisper “obstruction of justice” and be safe in his job forever. President Obama, coming from Illinois, would not even think of it.

Former U.S. prosecutor (and ex-quarterback at Ohio State), Daniel Westerbeck has a more intriguing suggestion – that Fitzgerald was actually protecting Mr. Obama. He notes that although the official Complaint did not mention any contact between the president-elect and the governor, Obama’s top strategist David Axelrod had earlier admitted constant interaction over the Senate replacement. He even had a candidate, Valerie Jarrett. Thus, as soon as Sen. Obama was elected, the country could have faced the possibility of a Constitutional crisis involving the president-elect. Westerbeck surmises that Attorney General Michael Mukasey avoided this by informing the Obama team about the wiretaps. What we know is that Ms. Jarrett withdrew weeks before the news conference. Westerbeck’s reasoning was that

after the election, as Patrick Fitzgerald and the Attorney General pondered this, their choice was stark: 1) do we follow the normal protocol and let the tapes roll and maybe reel in Obama staffers (or, God forbid, Obama himself) bargaining with Blago in the US Senate seat auction; or, 2) do we tip Obama in a briefing and abruptly terminate the investigation at the governor's level and thus preclude it from reaching Obama and his staff? I think they made a political and legal calculation in the nation's interest and chose the latter course. They saved Obama, or certainly his staff, from the taint of the criminal action and also prevented the sale of a US Senate seat by a corrupt Cook County Democrat politician by arresting Blago [prematurely].

While such a decision would have its altruistic dimensions, Mr. Westerbeck also concludes there was a pragmatic one. “So Obama now owes the Justice Dept. and US Attorney Patrick Fitzgerald, in particular, a big one”, even the Attorney General position if Eric Holder falters, which he well might given his role in the Marc Rich pardon. Certainly, there would be no removal of Mr. Fitzgerald for as long as he wants to remain.

No doubt such an easy and crass target as Blagojevich will be tried and undoubtedly convicted of something. There are enough scared politicians who will succumb to prosecutors’ threats and make a case against him. But after acting so early, what case can Fitzgerald make? Should we not care as long as the foul-talking tough guy gets his due? Of course, it is good to go after public corruption but is talking tough a crime? It will be interesting to compare the governor’s with tough-talking Obama chief of staff Rahm Emanuel’s taped remarks when they are released. Marvelously, Fitzgerald had anticipated, had already answered this question himself at his media conference. When a Chicago reporter asked when merely “talking-tough” had become a crime, he referred her to the conspiracy statutes.

The dirty little secret of the U.S. Federal justice system is that if you do not have the evidence to convict a person of a crime, convict him of conspiracy. Everyone conspires with others on non-criminal matters – common conspiracy simply means working in secret for a common goal - so once it is allowed it is shooting fish in a barrel to convict on “conspiracy” alone without an underlying crime. If U.S. prosecutors could convict a nice and attractive person like Martha Stewart on a conspiracy charge without her being charged with an underlying crime, surely they could get a scalawag like the Illinois governor on the same dodge, without having to meet the higher standards of proof for committing an actual crime.

How have we come to this? It was not until the 19th Century that conspiracy was even considered a crime other than as conspiracy against the state and it was not used generally until the great increase in difficult to prove white collar crimes with the rise of the welfare state in the 20th Century. Indeed, even today federal white collar crimes are considered crimes against the U.S. Government, i.e. the state. Even so, it was not until very modern times that one could be convicted of conspiracy without being charged with an underlying crime. Conspiracy especially became the charge of choice to convict for secretive drug crimes as distribution exploded in the wake of the hippie revolution of the nineteen sixties.

Today a prosecutor can jump from any one trivial crime to another for five years or more and through plea agreements rather than trials (90% of convictions are pleas) coerce defendants into enticing higher-ups into recoded conversations and based on their tough-talk can convict media-appealing big shots of conspiracy when no actual crimes have taken place even after the fact. That even the President-elect could have been implicated for simple horse-trading under these standards should be sobering, although taking on media star President Obama this early is unthinkable. Either way, no one can touch prosecutor Fitzgerald, who now has as high potential and even firmer tenure than the president himself.

Donald Devine, the editor of Conservative Battleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University.