Fitzgerald Should Keep His Opinions to Himself

As in the Libby case, his behavior is 'appalling.'

Illinois Gov. Rod Blagojevich's "conduct would make Lincoln roll over in his grave," according to U.S. Attorney Patrick Fitzgerald. But Mr. Fitzgerald's statement would, at the very least, make well-regarded former Attorney General Robert Jackson flinch in his. Almost seven decades ago, Jackson admonished a meeting of U.S. attorneys that they should be dedicated "to the spirit of fair play and decency . . . . A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power . . . ."

In the Dec. 9 press conference regarding the federal corruption charges against Gov. Blagojevich and his chief of staff, Mr. Fitzgerald violated the ethical requirement of the Justice Department guidelines that prior to trial a "prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." The prosecutor is permitted to "inform the public of the nature and extent" of the charges. In the vernacular of all of us who practice criminal law, that means the prosecutor may not go "beyond the four corners" -- the specific facts -- in the complaint or indictment. He may also provide any other public-record information, the status of the case, the names of investigators, and request assistance. But he is not permitted to make the kind of inflammatory statements Mr. Fitzgerald made during his media appearance.

Associated Press, Patrick Fitzgerald

I am as repulsed by the governor's crude statements -- captured on tape by investigators -- as anyone. And although I am a Republican, I am first an officer of the court. Thus, I take no joy in a prosecutor pursuing a Democratic politician by violating his ethical responsibility. I fear for the integrity of the criminal justice system when a prosecutor breaks the rules.

What's more, Mr. Fitzgerald is a repeat offender. 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.

In the Libby case, rather than suffer criticism, Mr. Fitzgerald became a media darling. And so in the Blagojevich case he returned to the microphone. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct as "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."

Additionally, Mr. Fitzgerald violated another ethical mandate under Justice guidelines for prosecutors: He is supposed to "exercise reasonable care to prevent" law enforcement -- in this case the FBI Agent -- from making the same type of extrajudicial statements. Mr. Fitzgerald exercised no care.

Special Agent Rob Grant volunteered that when he arrived in Illinois four years ago, he was asked by the media whether Illinois is the "most corrupt state in the United States." He then answered that four-year-old question claiming, "[I]t's one hell of a competitor." Mr. Grant did not stop there. He revealed that the FBI agents who participated in the case were "thoroughly disgusted and revolted by what they heard."

Well, weren't we all? Even though the governer's maneuvering to sell the Senate seat most likely had not yet crossed the line to become criminal behavior, it was base, sordid conduct. But those thoughts and words are for the rest of us to express before the trial. It is unethical for those who are government prosecutors to do so.

Ms. Toensing, a former Justice Department official, is a lawyer in Washington.