Why Did Fitzgerald Act?
by Theodore Scudder
Issue 125 - February 4, 2009

As a former Asst. U.S. Attorney under Thompson and others in Chicago, I should like to comment on your editorial, “Why Did Fitzgerald Act?” My partner, John Ostojic grew up with fellow Serbian-American Milorad Blagojevic, was a classmate in school, and frequently visited the B. household. So I have had some inside views from him about the Governor's current problems. Previously I had an inside seat for the prosecutions of Gov. Kerner, Atty. Gen. Bill Scott, and others. I also had two trials opposite def. atty. Ed Genson, so I know him and his abilities. (I believe Scooter Libby attended Andover after me -- I was Phillips.Andover '57) So I had many personal reactions as I read your editorial.

Filing a complaint against the Governor and arresting him early are standard procedures where something has to be done quickly, then following up with an indictment from a grand jury later. But, as your editorial states, the Fitzpatrick press conferences (1st for Libby, then for Blago) are very unusual and contrary to Justice Department policy.

We already have vicious investigative media, and now the prosecutor is piling on. It appears that Blago has become rather arrogant, has not been a party team player, and has alienated most Illinois politicians. But the story of the criminal complaint against him has been blown out of proportion, so that he can not get a fair trial. The comments about conspiracy revive a long on-going issue. The Aug. 1945 London treaty which set up the Nuremberg trials was one episode, in which the French and Soviets objected that conspiracy law was peculiar to English law, primarily in the U.S.

An attorney working for Henry L. Stimson (another Andover grad) in the War Department came up with the idea of charging criminal conspiracy against specific Nazi offices (SS, Gestapo, etc.) in the first Nuremberg trial, then using it as precedent in later trials to convict members of those organizations. Three such organizations were found to be conspiracies. But later war crimes courts have emphasized the crimes against humanity, and not the conspiracy charges at Nuremberg. The British version has been used where I worked, at the ICTY (UN International Criminal Tribunal for the former Yugoslavia) in The Hague.

Again, thanks for a most interesting and informative article.

Best regards, Theodore Scudder