Don't compare Nifong and Fitzgerald!

"[Dorothy] Rabinowitz, a member of The Wall Street Journal's editorial board, won a Pulitzer Prize for commentary on prosecutorial abuse," we are informed in the byline of this OpinionJournal op-ed. I'm not interested in trying to trash Ms. Rabinowitz in general (h/t Tom Maguire), but I do hope that her award-winning writing was better than this mish-mash of ill-considered comparisons. Despite the headline and subhead — "A Tale of Two Prosecutors: Mike Nifong is punished, but Patrick Fitzgerald isn't" — not much of this piece is specifically about Mr. Fitzgerald. Some of what there is, is demonstrably misleading. And the rest fails utterly to establish any remote comparison between the two prosecutors.

I've written before at great length to rebut better arguments that Mr. Fitzgerald abused his prosecutorial discretion than Ms. Rabinowitz has raised. Frankly, hers are remarkable only for the prestige of the venue in which they appear.

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Fully half of Ms. Rabinowitz' discussion of the Libby case actually consists of criticism of U.S. District Judge Reggie Walton. But of Mr. Fitzgerald in particular, she writes (italics mine):

The obligation to truth, [Mr. Fitzgerald] argued, was of the highest importance, and one in which Mr. Libby had failed by perjuring himself. It would be hard to dispute the first contention. It is no less hard to avoid the memory of Mr. Fitzgerald's own dubious relation to truth and honesty — as, for example, in his failure to disclose that he had known all along the identity of the person who had leaked the Valerie Plame story. That person, he knew, was Richard Armitage, deputy to Colin Powell. Not only had he concealed this knowledge — in what was, supposedly all that time, a quest to discover the criminals responsible for the leak of a covert agent's name — he had instructed both Mr. Armitage and his superior, Colin Powell, in whom Mr. Armitage had confided, not to reveal the truth.

Special prosecutor Fitzgerald did, of course, have a duty to keep his investigation secret during grand jury proceedings, according to the rules. He did not have the power to order witnesses at those proceedings not to disclose their testimony or tell what they knew. Instead, Mr. Fitzgerald requested Messrs. Armitage and Powell to keep quiet about the leaker's identity — a request they understandably treated as an order. Why the prosecutor sought this secrecy can be no mystery — it was the way to keep the grand jury proceedings going, on a fishing expedition, that could yield witnesses who stumbled, or were entrapped, into "obstruction" or "lying" violations. It was its own testament to the nature of this prosecution — and the prosecutor.

This argument is either monumentally uninformed, or monumentally disingenuous. Either way, it's inexcusable for someone of Ms. Rabinowitz' stature and the Wall Street Journal's reputation for basic factual accuracy.

Mr. Libby was indicted and convicted for, among other things, lying to the FBI agents who were questioning him on October 14 and November 26, 2003. Mr. Fitzgerald, by contrast, was not even appointed as special counsel until over a month after the second FBI interview, on December 30, 2003. If the jury verdict is just and correct — and that's concededly a question that Mr. Libby's still testing, via the appellate process, but as of this moment he stands duly convicted — then Scooter Libby was already a self-made felon (albeit an as-yet-unindicted and -unconvicted one) before Patrick Fitzgerald ever got into the investigation.

No one has been a harsher critic of Amb. & Mrs. Bozo & Bozo-ette Joseph Wilson than me, and I am keenly aware of the dangers of "politics as usual" being "criminalized." Maybe the CIA shouldn't have referred this matter to the DoJ (although I think it should tend to err on the side of referring if it's at all a close case; but maybe this one wasn't). Maybe Attorney General John Ashcroft ought not have recused himself (although I think he was right to do so, given his past personal ties with then-reported chief suspect Karl Rove), and maybe his deputy, James B. Comey, ought not have appointed a special counsel (although I think he was right to do that, too, for reasons having to do with public confidence in the justice system and avoiding appearances of favoritism, and I said so at the time).

But when Mr. Fitzgerald got this case, it was already necessarily a false statement/perjury/obstruction investigation because what Mr. Libby had already repeatedly told the FBI agents simply couldn't be squared with the other written evidence and witness statements they had in hand.

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So what would a responsible prosecutor do at that point? There may or may not have been an underlying crime committed, and that may indeed have been clear to Mr. Fitzgerald within hours or days after his appointment. But there also could be no doubt that what Mr. Libby had told the FBI agents back in October and November was indeed material to their original investigation — as the jury eventually necessarily found, based on the "materiality" instructions from the court (which in turn don't appear to be a major subject of Mr. Libby's pending appeal).

Prosecutors do have discretion; they don't have to seek indictments for everything. And a reasonable prosecutor in Mr. Fitzgerald's position when he first compared the FBI reports to the other evidence, especially given Mr. Libby's superb previous record as a public servant, could well have been skeptical of whether what Mr. Libby had said to the FBI agents by itself justified an indictment.

So in the exercise of his prosecutorial discretion, Mr. Fitzgerald did the responsible, prudent thing: What Ms. Rabinowitz paints as grand jury prolongation for purposes of "entrapment" ought instead be viewed as Mr. Fitzgerald throwing Mr. Libby the proverbial life-line by which Mr. Libby could have, and should have, extracted himself from the considerable hole he'd dug himself into before Mr. Fitzgerald was ever in the case.

Specifically, Mr. Fitzgerald used the formal and stately process of the grand jury proceedings to make further, much more detailed inquiries of Mr. Libby — under oath and with full stenographic and audio tape records. Mr. Fitzgerald asked sufficient questions to make absolutely sure that this wasn't just a mix-up, a slip of the tongue, a misunderstanding by the FBI agents. He ensured that Mr. Libby was represented by counsel standing by just outside the room. He expressly, repeatedly, and gravely warned Mr. Libby and his counsel that that Scooter Libby was the specific subject of an investigation that included making false statements and obstruction of justice in connection with his prior statements to the FBI. If ever there was a time to search one's memory, or even to express some doubts about one's previous recollection, then surely — obviously — this was that time! Mr. Fitzgerald might just as well have handed Mr. Libby an engraved invitation  reading "Just clean up your act, buddy, so I can cut you some slack on the FBI interviews, shut down this circus, and get back to Chicago to prosecute some genuine terrorists." 

And the result — if the jury's verdict is to be credited and if it is upheld — was that on two separate occasions, specifically on March 5 and March 24, 2004, Mr. Libby grabbed that life-line and then deliberately, if inexplicably, re-hung himself with it by committing perjury again and again.

How many chances, how many warnings, how many opportunities to refresh his "mistaken" memory, was Mr. Fitzgerald supposed to give Mr. Libby? How much can Mr. Fitzgerald be faulted for what was, at worst, was simply handing Mr. Libby more rope? It's easy for me to imagine a prosecutor cutting some slack — and being willing, if necessary, to face public outrage for that — for declining to seek an indictment just because someone's FBI statements seemed a bit off. But when that person has literally stared the prosecutor in the eyes, twice, and calmly and impassively continued telling an impossible tale while under oath and while knowing he was under the microscope, it's hard for me to imagine any prosecutor not seeking an indictment.

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Ms. Rabinowitz surely knows that it is indeed routine for prosecutors to suggest to grand jury witnesses that keeping quiet about their testimony will best serve the interests of justice. If she agrees that courts and the rule of law, rather than gossip and the press, ought to determine criminal guilt and innocence, she understands why those suggestions are valid. She nevertheless inconsistently and absurdly characterizes Mr. Fitzgerald's statements to Richard Armitage and Colin Powell as an "instruct[ion]" in one paragraph, then as a mere "request" in the next — as if to leave an impression that Mr. Fitzgerald himself thereby tried to conceal evidence, corruptly influence their testimony, or obstruct justice. She expressly acknowledges in one paragraph Mr. Fitzgerald's own binding legal obligation not to discuss grand jury proceedings, but then in the other she suggests that Mr. Fitzgerald had some sort of indistinct, overriding obligation to "disclose that he [i.e., Mr. Fitzgerald] had known all along the identity of the person who had leaked the Valerie Plame story" anyway. That's silly, and wrong, and badly misleading.

Special counsel Fitzgerald, having duly run all the reasonable traps and followed up all the reasonable leads, would have ended up announcing that the investigation of L'Affair Plame was being closed with no indictments — except that he had in hand a large quantity of evidence that strongly tended to show acts of perjury and obstruction of justice by Scooter Libby, acts that were indeed independent crimes without regard to whether anyone's leak of Plame's identity was itself a crime.

Mr. Fitzgerald put those matters to the grand jury, as his duty in our system requires when his discretionary instincts are overcome by the weight of evidence. And based on that evidence, the grand jury indicted. The indictment was duly filed with the court, and the defendant had every opportunity to challenge it before trial. The indictment was not dismissed, and the case was tried. The pending appeal will test whether the trial was thoroughly fair, but it is indisputable that Libby's defense team vigorously cross-examined the prosecution's witnesses and presented their own defense. Their defense very notably did not include Mr. Libby testifying in his own behalf — something universally ignored and unexplained by Mr. Libby's media defenders, by the way, and something that remains inexplicable to me for a man who had no prior convictions, who was trying to persuade the jury of flaws in his subjective memory and lack of criminal intent, and who was in fact the only witness who could ever possibly give direct evidence of his state of mind, memory, and intent. The jury, having found proof beyond a reasonable doubt on every element of four of the five counts, then convicted Mr. Libby. And outright insufficiency of evidence will assuredly not be among Mr. Libby's leading appeal points. His lawyers have far better sense than to destroy their credibility with the D.C. Circuit by highlighting that sort of argument, and I doubt they make it at all.

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Mr. Libby's conviction may well still be overturned on appeal. I think his best argument by far, based on what I've read, is the one attacking Mr. Fitzgerald's appointment process. I'll probably blog more about that later, separately; Ms. Rabinowitz' op-ed also mentions it, and she's right that Judge Walton behaved badly in his footnote discussion of the law professors' amicus brief about it. But if that appellate point succeeds, it will be because invalid prosecutorial appointments are conclusively presumed to never be "harmless error" — not because anything in particular would have been done differently, or not at all, by either a regular DoJ prosecution team or by a special prosecutor whose authority was properly circumscribed within 28 C.F.R. part 600. (Mr. Fitzgerald's appointment was pointedly not so circumscribed, and instead he was cut entirely free of even theoretical DoJ control for reasons that in my own opinion remain entirely obscure and, so far, unjustifiable.)

And as I've also written, I think there may also be sound reasons for President Bush to commute Libby's prison sentence if the D.C. Circuit doesn't order him released on bail pending appeal. That would permit the appeal to go forward, and if it is unsuccessful, still leave Libby disgraced, disbarred, heavily fined, and amply punished (especially, as many have noted, in comparison with the likes of Sandy Berger).

So I sympathize with those who sympathize with Mr. Libby. It's easy for such people to blame the judge, blame the jury, blame the CIA or Armitage or Joe Wilson — and yes, it's easy for them to blame Mr. Fitzgerald. He has been a very aggressive, and so far very effective, advocate for the prosecutorial position. (It's his job, for example, to make the argument that unproved crimes can still be considered under the sentencing guidelines on obstruction of justice — otherwise sentencing judges will end up rewarding those who successfully obstruct justice. Whether he succeeded in positing a persuasive causal link in this particular case, though, is another issue that will likely be tested on appeal, and on which his argument may be found wanting.)

But equating Patrick Fitzgerald to Michael Nifong? Are you nuts, Ms. Rabinowitz? Nifong is likely to be prosecuted for a crime very similar to Libby's — obstruction of justice. You may disagree that Mr. Libby's conviction is just. But that's a far, far cry from showing, or even arguing persuasively, that Mr. Fitzgerald and his team have themselves engaged in criminal subversion or obstruction of justice.

If you were a guy, Ms. Rabinowitz, and you were to make that kind of suggestion in a bar frequented by prosecutors and defense lawyers, you might end up getting your lights punched out. It's just way, way over the top — so far as to suggest that you don't remember that there is a top.

And when you play fast and loose with the basic facts, Ms. Rabinowitz — ignoring basic, uncontrovertable things like key dates when you're weaving a misleading argument — you're engaging in what may aptly be called "editorial punditry abuse." You do Mr. Libby no service when you demonize his prosecutor. And we readers and subscribers expect and deserve better from both you and the newspaper on whose editorial board you serve.