A Prosecutor Who Didn’t Back Down

Special prosecutor Patrick J. Fitzgerald lived up to his billing as a hard-nosed U.S. attorney when he pressed for the jailing of a reporter who refused to testify in his investigation into the leak of a CIA agent’s name. But his action just as likely was spurred by the unique fact-finding mission given special prosecutors, legal observers and those who have worked with Fitzgerald in the past said Thursday.

The imprisonment Wednesday of New York Times reporter Judith Miller for failing to testify before a grand jury served to aid Fitzgerald’s probe, several lawyers said.

It showed the targets of his inquiry that he meant business. A second reporter, Time magazine’s Matthew Cooper, agreed to testify after also being threatened with jail. Cooper said he had been prepared to go to jail but that his source called him at the last minute to release him from his confidentiality pledge.

Even if Fitzgerald’s investigation fails to produce any indictments, said Andrew C. McCarthy, a former prosecutor who is a senior fellow at the Foundation for the Defense of Democracies. Fitzgerald, he said, “has to show he investigated the case in a fair and comprehensive manner.” So Fitzgerald’s move against Miller and Cooper allows him to show that he took all available measures to get at the truth.

While McCarthy and other lawyers insisted Fitzgerald had done the right thing in trying to compel testimony, not all former special prosecutors agreed.

Lawrence E. Walsh, independent counsel in the Iran-Contra probe of Reagan administration officials between 1986 and 1993, said that he never considered taking action against reporters and could not imagine a justification for it.

“I felt it was up to me and my associates to conduct our own investigation and not force a reporter to do it for us,” Walsh, a former federal judge, said in a telephone interview from Oklahoma City. “Maybe there’s a need in this particular case, but I don’t see it.”

Fitzgerald, 44, aggressively prosecuted terrorism cases in New York before being appointed by President Bush in 2001 as U.S. attorney in Chicago.

In his current role as special prosecutor, he pressed for months to compel Miller, Cooper and several other reporters to testify in an effort to learn more about the outing of CIA agent Valerie Plame. Her identity as an undercover agent was exposed in July 2003 by conservative syndicated columnist Robert Novak, who cited “two senior administration officials” as his sources.

Plame’s husband, former U.S. envoy Joseph C. Wilson IV, charged that her name had been leaked by White House officials in retaliation for his public accusation that the Bush administration had used faulty intelligence in deciding to wage war in Iraq.

In response, the Justice Department opened an investigation into whether White House officials had violated the Intelligence Identities Protection Act of 1982, which prohibits a government officer from knowingly revealing the identity of undercover intelligence agents. In December 2003, then-Atty. Gen. John Ashcroft recused himself from the case and a Justice deputy appointed Fitzgerald as special prosecutor to ensure an independent inquiry.

As Fitzgerald’s probe nears a conclusion, said Paul Rosenzweig -- a legal analyst with the conservative Heritage Foundation who worked on the investigation of President Clinton under then-special prosecutor Kenneth W. Starr -- there are three apparent options:

Fitzgerald could indict someone for leaking Plame’s name in violation of the 1982 identity protection law.

He could indict anyone found to have committed perjury in the course of the investigation.

Or, failing to win indictments, Rosenzweig said, Fitzgerald could issue a detailed report containing his findings and explaining the obstacles that prevented him from filing charges.

“Special prosecutors have to explore every option. It comes with the territory,” Rosenzweig said. “They know any decision they make will be challenged. If you take a moderate course, you’re accused of pulling your punches. If you go harder, you’re called unfair.”

But the 93-year-old Walsh -- who won indictments of 11 Reagan administration aides, including former Defense Secretary Caspar W. Weinberger, national security advisor John M. Poindexter and his aide, Lt. Col. Oliver L. North -- said that as special prosecutor, he had abided by a cautionary message he was given in 1938 by legendary New York prosecutor Thomas Dewey.

Soon after Walsh was hired as a young assistant, he said, Dewey “called us in on a New Year’s Day and laid down one rule: No one was to subpoena a reporter without his permission. It was a point of respect for another profession and his belief that we had to do our job ourselves.”

Since 1970, internal Justice Department guidelines have instructed prosecutors to press for reporters’ notes and testimony only as a last resort. Those guidelines are not binding, Rosenzweig said, but they have also applied to all special prosecutors.

“The difference between main Justice and a special prosecutor is that regular prosecutors have to consider the timing and strains on resources it takes to go after a reporter and all the appeals and bad publicity that come with it,” Rosenzweig said. “But special prosecutors have their own budgets and have more control over their timing.

“They already work with the understanding that their case is unique and important. That’s why they’ve been appointed,” Rosenzweig added. “If Fitzgerald feels he’s exhausted every avenue and has no choice but to go after a reporter’s testimony, he’s not going to have second thoughts about it.”

Fitzgerald earned his reputation as a tough prosecutor when he was assigned to oversee terrorism-related cases in the U.S. attorney’s office in New York. He led the first major federal probe of Al Qaeda and won convictions of five terrorists accused of plotting the 1998 bombings of U.S. embassies in east Africa.

Admired by counter-terrorism agents for his courtroom aggressiveness and photographic recall of facts, Fitzgerald also has been criticized by defense lawyers for harsh tactics.

Lawyers representing a former pilot for Osama bin Laden complained when Fitzgerald pressed for a lengthy prison term after the man refused to testify to a federal grand jury in New York.

And in 2003, Fitzgerald won a guilty plea on a fraud charge from the head of an Islamic charity in Chicago -- but only after agreeing to dismiss the original terrorism charges.

The Sept. 11 commission that investigated U.S. intelligence failures following the terrorist attacks later concluded that the government’s treatment of two Islamic charities had raised “substantial civil liberty concerns.”

In taking on the Plame case, Fitzgerald had to understand that “someone’s nose would be out of joint no matter what he did,” McCarthy said.