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For prosecutor, CIA leak case comes down to matter of law
WASHINGTON - The White House aides and journalists at the center of Patrick J. Fitzgerald's probe into how a spy's cover was blown have little in common with the terrorists and mobsters he has pursued for most of his career.
But for Fitzgerald, a prosecutor known for being as tough and relentless as he is brilliant, that's a distinction without a difference.
The 44-year-old Brooklyn native seems as determined to find out whether one of President Bush's top advisers is responsible for the leak as he was to build a case against Osama bin Laden, whom he indicted in 1998, or to send New York crime family captain John Gambino to prison, which he did in 1994.
It's a matter of law, and anyone who knows Fitzgerald knows he doesn't hang back when he believes a crime might have been committed - no matter what the crime might be.
"At a certain point, we have to yield to law because if we don't, we're lost," Fitzgerald told a judge this month, on the day New York Times reporter Judith Miller went to jail at his request for refusing to testify about her sources.
The mentality is classic Fitzgerald, colleagues and friends say, calling it the secret to his success. But the aggressive tactics that flow from it have, at times, drawn controversy.
Fitzgerald's decision to force journalists to reveal their sources has been criticized by reporters and some legal analysts, who say it could irreparably damage the news media's ability to do their work. Others, including some critics, call it a clever and, above all, necessary move that could help Fitzgerald solve a puzzling case.
Felt at highest echelons
Nineteen months into his investigation, nobody has been charged with a crime, but reverberations of the prosecutor's hard-nosed tactics are being felt at the highest echelons of government.
Bush and Vice President Dick Cheney have sat for questioning by Fitzgerald, the U.S. attorney from Chicago chosen by the Justice Department in December 2003 to handle the leak case.
Karl Rove, a top Bush aide, is under fire for his involvement in the matter, after Fitzgerald subpoenaed e-mails from Matt Cooper, a Time magazine correspondent, detailing a conversation in which Rove mentioned the agent, Valerie Plame, although not by name.
Scott McClellan, Bush's press secretary, has been fielding daily questions from journalists at the White House demanding to know why he denied two years ago that Rove was involved.
Miller is on Day 11 of her jail stay.
Fitzgerald declined, through his office, to be interviewed for this article. But friends, colleagues and adversaries say the aggressive methods he has employed in the CIA leak case are typical of the workaholic Chicago prosecutor, an Amherst College Phi Beta Kappa in math and economics with a Harvard law degree, who has always excelled at taking unorthodox approaches to mind-boggling problems.
"Pat always sees beyond the obvious in a case," said David N. Kelley, a friend who worked organized crime and terrorism cases alongside Fitzgerald in the U.S. attorney's office in Manhattan.
One night, shortly after both had started there, Kelley gazed down at stacks of files in a case he was handling, certain he was about to lose. Colleagues who came by to page through his notes and research agreed, one by one, that Kelley was doomed. Not Fitzgerald.
"Pat looked at it and said to me, 'Have you thought about it this way?' And I hadn't. And it's suddenly like someone had flicked the lights on," said Kelley, now Manhattan's top federal prosecutor. Kelley worked all night drafting a brief based on Fitzgerald's idea and salvaged his case.
'An amazing brain'
Fitzgerald was born Dec. 22, 1960, the son of Irish immigrants - his father was a doorman on Manhattan's Upper East Side - who raised him in Flatbush. He won a scholarship to attend the Jesuit Regis High School, one of the city's best, working as a school janitor and a doorman to save money for college.
Even among the academic elite at Amherst, he stood out. Strikingly intelligent, he had a gift for distilling huge amounts of complex information into a simple, understandable narrative that his classmates could understand. Friends would turn to him after economics class for a translation of the day's lesson, Tony Bouza said.
"He was born with an amazing brain," Bouza said. And Fitzgerald always took pains to be "unassuming and nonintimidating," aware that his intellect might put people off.
Still, there were early signs of his inner grit. Fitzgerald took up rugby - a bruising sport he would continue through college, law school and his early days as a young lawyer in Manhattan - and allowed his friends glimpses of what Bouza called a "clever, sarcastic wit."
All were traits that would serve him well as a prosecutor in New York, where colleagues marveled at Fitzgerald's ability to weave together large amounts of evidence into a compelling case and his flair for presenting it to a jury in a simple, convincing way.
Fitzgerald practically lived in his office then, keeping his clothing there and neglecting even the most basic comforts of home - such as getting his gas service switched on.
Kelley still calls his friend sometimes, late in the evening, to say, "Pat, I'm going home - you have to, too." Fitzgerald's colleagues know he's available on his cell phone or BlackBerry at any hour of the day or night - except maybe during his annual trips to the woods with friends, including Kelley, for rock-climbing and hiking.
A three-day summation of his case against Sheik Omar Abdel-Rahman for the 1993 World Trade Center bombing was typical of what emerged from such workmanlike ways. Fitzgerald delivered the summation - for a case whose record spanned 22,000 pages, with an additional 20,000 pages of exhibits - just from notes.
"It was masterful," says Andrew C. McCarthy, one of Fitzgerald's trial partners in the "Day of Terror" case, which had 11 defendants. "He just stood there and spoke to the jury for three days, and you always felt - every moment - like all of [the defendants] were involved."
The jury agreed. The "Blind Sheik" was sentenced to life, and Fitzgerald - fearing that Abdel-Rahman would try to incite violence among his followers from prison - used a never-before-applied law to have Abdel-Rahman incarcerated in isolation.
Some critics fault Fitzgerald for such moves, accusing him of abusing his power and going beyond what is necessary or appropriate.
He took heat for his handling of a 2002 terrorism case in which he set out to prove that Enaam Arnaout, director of the Islamic charity Benevolence International, was funneling money to al-Qaida.
His case suffered a setback when a federal judge refused to allow Fitzgerald to use hearsay evidence - statements by Arnaout's alleged co-conspirators - to tie the Syrian-born defendant to terrorism. Arnaout ended up pleading guilty to one count of racketeering, admitting to sending funds to rebels in Chechnya and soldiers in Bosnia, but not to al-Qaida.
Civil liberties concerns
The staff of the independent Sept. 11 commission later criticized Fitzgerald's methods. "Although effective in shutting down its targets, this aggressive approach raises potential civil liberties concerns," the staff wrote, adding that the question wasn't whether Fitzgerald had stayed within the bounds of his authority, but whether he had "appropriately" exercised his power.
His allies defend Fitzgerald against charges that he's overzealous.
"He is aggressive, but I think appropriately so. He has a sense of the power that he wields, and does so with judgment and with restraint, but also with his mission in mind," said Mary Jo White, the former top prosecutor in Manhattan, who calls Fitzgerald "a brilliant legal mind and a brilliant investigative mind."
Above all, friends and co-workers say, Fitzgerald is comfortable in his skin and confident he's right - which might help explain why he seems untroubled by the idea that his work kicks up controversy.
"I don't think it weighs on him at all - not to say he's oblivious to what's going on around him," White said. "But at the end of the day, he's totally independent and objective, and is not going to back down."
For Fitzgerald, named in 2001 to be Chicago's top prosecutor after ringing endorsements from members of both parties, that has meant continuing his investigation amid keen displeasure from some Republicans.
"It's hard to know" what Fitzgerald is up to, Ken Mehlman, the party chairman, told MSNBC last week. While no prominent Republican has dared criticize him in public for his handling of the case, it's clear that Fitzgerald's work has created a major headache for the party.
Democrats, on the other hand, have had nothing but praise. Last week, Sen. Richard J. Durbin of Illinois called Fitzgerald "the straightest shooter I've ever known," adding, "I'll stand by him" regardless of whether he determines that a crime was committed.
"I have faith in him," Sen. Charles E. Schumer of New York said.
Even critics of Fitzgerald's tactics acknowledge that he has been effective at finding creative ways to accomplish his goal in the CIA leak case. Journalists fault Fitzgerald for opening the door to more prosecutions of reporters, but some admit that loopholes in the law allowed him to do so.
Fitzgerald has "found a vulnerability in the law as regards reporters' privilege, and he's taking advantage of it. As any good attorney would, he's taking what he sees as an opportunity and running with it," said Lucy Dalglish, director of the Reporters Committee for Freedom of the Press.
Defense lawyers who have argued opposite Fitzgerald say he is a nightmare to tangle with, never letting anything slide and using the hardest-nosed approach to everything he does. He's drawn some criticism in Chicago, where he established a tough policy for charging defendants.
"Nothing goes untouched, unnoticed, uncared for," said George L. Santangelo, who defended Gambino in the 1990s.
Worst of all for his targets is Fitzgerald's Boy Scout-like determination to do things by the book.
"It's tough to go up against fair guys because they're being fair. You can't slap them around in front of a jury," Santangelo said. "In this investigation, if there's something there, he'll find it, and if he finds nothing, then there's nothing there."