Pat Fitzgerald: A 'Special' Prosecutor

Unlike Archibald Cox and Lawrence Walsh, Patrick Fitzgerald is no posturing partisan who assumed he had been chosen by Divine Providence to take on a White House and bring down a president.

Pat Fitzgerald is a strict constructionist of the law. And for that, the Bush White House can be eternally grateful.

As indictment week began, there were reports Karl Rove, "Scooter" Libby and several other White House aides would be indicted in a criminal conspiracy to violate the civil rights of Joe Wilson and out his wife, Valerie Plame, as a CIA agent.

Some thought Fitzgerald would name Vice President Cheney an unindicted co-conspirator, as Nixon was in Watergate, and put the Bush White House on trial for having lied the country into war.

But Fitzgerald refused to go beyond his mandate, or the evidence. No conspiracy was charged. No one was indicted for outing Plame. Only "Scooter" Libby was charged — for lying about a crime he did not commit.

To be exact, Fitzgerald, using a baseball analogy, said he could not indict Libby for outing Plame because he could not know for certain Libby deliberately revealed her identity, due to all the sand Libby threw in his eyes — i.e., all the lies he told. Thus, no one was indicted for the crime Fitzgerald had been appointed to investigate.

After 22 months, Pat Fitzgerald came in with a Martha Stewart indictment, though Libby, staring at years in prison for serial lying about something more serious than a stock transaction, may reject the simile.

Whatever his politics, Pat Fitzgerald seems an eminently fair man. He accepted Rove’s request to testify to the grand jury for a fourth time to explain why he failed to reveal a conversation with Time’s Matt Cooper. He heeded a plea from Rove’s attorney not to indict his client, who, after all, had told Fitzgerald the truth about other crucial conversations, but had forgotten the Cooper phone call.

Fitzgerald apparently decided to err on the side of not destroying Rove’s reputation, career and life, because he still had some doubt as to whether Rove had deliberately deceived him.

Compare, if your will, Pat Fitzgerald to Ronnie Earle, the man who indicted Tom DeLay for violating a law that was not on the books when the House minority leader was alleged to have broken it.

There is something else commendable that Fitzgerald has done. He has refused to criminalize politics.

After listening to 22 months of secret testimony, Fitzgerald had to know Cheney’s office and the White House Iraq Group had run a media campaign to destroy the credibility of Iraq war critic Wilson. He had to know that when Scott McClellan told the press no one in the White House had a hand in outing Plame, McClellan had either been lied to by White House colleagues, or had lied himself.

But Fitzgerald hewed to the letter of the law. If White House aides were savaging Wilson by backgrounding the press and lying to the country, that was not his problem. But if they lied to him or the grand jury, that was his problem — and his jurisdiction.

There exists the possibility that had Libby told the truth — i.e, yes, we were out to discredit Wilson, but in leaking Plame’s name we did not know she was covert — this investigation might have shut down without a single indictment. Indeed, how does one explain how Libby, a smart man, could go before a grand jury and testify under oath in direct contradiction of his own notes that he had just given the prosecutor? The only rational explanation is that Scooter is building an insanity defense.

Also to his credit, Fitzgerald told the nation at his press conference not to draw any conclusions about the war from the indictment of Libby:

"This indictment is not about the war. … People who believe fervently in the war effort, people who oppose it, people who have mixed feelings about it, should not look at this indictment for any resolution of how they feel or any vindication of how they feel.”

What the special prosecutor is saying here is that it is not his business to do the job that Congress failed to do in 2002, when it gave Bush a blank check to take us to war without looking hard into White House claims of an imminent and mortal peril from an Iraq nuclear arsenal.

In contrast to Congress, Pat Fitzgerald came to Washington and did the job he was assigned to do. He carried out his mandate, but refused to go beyond it. He indicted for what he believed were violations of law, not violations of ethics — and only on the charges he believed he could prove beyond a reasonable doubt. We need more public servants with this kind of conscience — and conscientiousness.