No Comment — December 11, 2008, 11:15 am

Politics and the Federal Prosecutor

The indictment of criminal complaint filed against Illinois Governor Rod Blagojevich is getting ample attention on a number of fronts. The political entertainment value of the materials filed with the indictment, particularly including the transcripts of some internal conversations, is hard to beat. The FBI agent’s affidavit clearly furnishes the guts for a solid Broadway drama, and, who knows, maybe even a good movie.

But while Blagojevich garners withering attention, and is more properly the province of Washington Babylon, it seems to me that there is another character who requires appraisal: Patrick Fitzgerald. Scott Shane got off to a good start with a piece in yesterday’s New York Times in which he reviews Fitzgerald’s career. It made me think of a tale that an alumnus of the Southern District U.S. Attorney’s office, a contemporary of Fitzgerald’s, recounted to me recently–while acknowledging that it might be pure legend. Fitzgerald, he said, had a reputation as the most work-obsessed young assistant prosecutor on a staff of workaholics. His social life was thought to be non-existent. But once Fitzgerald invited a young woman he was dating over to his bachelor’s apartment. His date made a horrifying discovery: opening his oven, she found a dish of lasagna, covered with mold. It had evidently been sitting there for weeks. Fitzgerald, it seems, lived off of take-out and rarely spent an evening at home in his apartment.

At a time when the Department of Justice’s reputation has sunk to its modern low point, Fitzgerald stands as a model of the selfless service a rigorous and principled professional prosecutor can provide. He has tackled and excelled with difficult cases, and often enough has struck at the political world. That is shown by the three cases that form of the core of his record: the prosecution of Governor George Ryan, the investigation of the leaks that blew the cover of a CIA covert agent named Valerie Plame that later resulted in the conviction of Scooter Libby, Dick Cheney’s chief of staff, and now the indictment of Governor Ron Blagojevich, Ryan’s successor.

Fitzgerald’s handling of each of these cases reflects toughness but also a sense of all the ethical rules and concerns that Robert H. Jackson spelled out in his speech “The Federal Prosecutor.” He targets crimes, not people; he works hard to build a solid case on clear evidence. When he doesn’t have the evidence, he doesn’t bring the case–for which both Karl Rove and Dick Cheney can be thankful.

The Blagojevich indictment came down the same day another prosecuted Governor, Don Siegelman of Alabama, argued his appeal in Atlanta. These prosecutions offer a stark study in contrasts. Just as the Siegelman case demonstrates a malicious, political manipulation of the criminal justice system by prosecutors with a suspect agenda, the Blagojevich case presents a study in how a politically sensitive case is properly managed and brought to the fore. Fitzgerald’s statements as the charges were announced also offer a demonstration of understatement, focusing on the ideals to be upheld.

It seems obvious that Patrick Fitzgerald should be retained as U.S. attorney in Chicago and allowed to handle this case to its conclusion. But that’s not enough. Is there a prosecutor in the federal system who has done more to win the respect and admiration of the public than Patrick Fitzgerald? Eric Holder and Barack Obama should consider putting him in charge of the operations of the Department as Deputy Attorney General. It would send a simple, necessary message to the country: the days of politics in the administration of justice are over. The theme of the day will be professional integrity.

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Nobody in academia had ever witnessed or even heard of a performance like this before. In just a few years, in the early 1950s, a University of Pennsylvania graduate student — a student, in his twenties — had taken over an entire field of study, linguistics, and stood it on its head and hardened it from a spongy so-called “social science” into a real science, a hard science, and put his name on it: Noam Chomsky.

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