Prosecutor’s Signature Traits Evident in the Case He Presses

The reputation of Patrick J. Fitzgerald was well-known to colleagues, defense lawyers and others long before he brought criminal charges against I. Lewis “Scooter” Libby in the CIA leak investigation: meticulous, aggressive, intense and, most of all, by-the-book.

All those traits were on public display Friday as the special prosecutor delineated his reasons for seeking Libby’s indictment by a federal grand jury. The same traits were also on display in the charges themselves.

Within hours of the grand jury’s indictments, Fitzgerald was being described by some critics as being overly cautious in limiting his charges to Libby, while others portrayed him as being overzealous and overreaching in his determination to bring any criminal case at all.

But according to some of Fitzgerald’s legal associates, friends and former adversaries, Fitzgerald did what they expected: He filed exactly what he believed the facts called for, no more and no less.

Some former colleagues and adversaries agree that Fitzgerald, 44, may come across as overly aggressive and even obsessive, especially given the creative and at times unprecedented legal tactics he has used to prosecute terrorists and mobsters. More recently, Fitzgerald has been prosecuting top Chicago city officials on corruption charges as the U.S. attorney for the Northern District of Illinois.

But they predict that, if anything, Fitzgerald’s obsessive nature will work in his favor in the CIA leak case -- and against Libby and anyone else who may ultimately be charged with criminal misdeeds.

They describe him as being exceedingly careful and deliberate, and say he would only file charges if he was sure he was on solid legal footing and had gathered the evidence for a good -- and winnable -- case.

“One of the things that makes him so effective is that he is incredibly perceptive and insightful,” said David N. Kelley, who successfully prosecuted many organized crime and terrorism cases with Fitzgerald. “He will dive into the facts and let the facts take him where they lead him, [and he] is blinded by nothing.” Kelley was until recently the U.S. attorney in Manhattan.

On Friday, Fitzgerald hinted at the scope and breadth of the investigation, saying that he and his team of FBI agents and prosecutors didn’t spend almost two years looking to prove whether any one particular crime was committed.

“Investigators do not set out to investigate a statute,” Fitzgerald said in a rapid-fire monotone. “They set out to gather the facts.”

Fitzgerald’s original mandate was to investigate whether someone in the government committed a crime by leaking the identity of CIA operative Valerie Plame to syndicated columnist Robert Novak and other journalists as part of an effort to discredit her husband, diplomat Joseph C. Wilson IV, a critic of the war in Iraq.

Fitzgerald was appointed on Dec. 30, 2003, by then-Deputy Atty. Gen. James B. Comey to investigate “the alleged unauthorized disclosure of a CIA employee’s identity.”

But it is difficult to prove a violation of the federal law that prohibits disclosing the identity of an undercover agent. And Fitzgerald has often prosecuted perjury, conspiracy and other such charges.

Colleagues and others say he doesn’t like being lied to. One defense lawyer who went up against Fitzgerald says, “He takes it personally.”

So just a few weeks after getting his initial marching orders, Fitzgerald requested, and obtained, “authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses,” according to a memo made public last week.

The charges against Libby: perjury, obstruction of justice and making false statements.

Fitzgerald also won authority to conduct appeals arising out of any prosecution and the authority to pursue administrative remedies and civil sanctions, such as the charges of contempt of court that landed New York Times reporter Judith Miller in jail for 85 days for refusing to cooperate.

That Feb. 6, 2004, memo illustrates how cautiously he has run the investigation and how he has been laying the groundwork for a possible criminal conspiracy case for almost two years, former colleagues said. Meanwhile, Fitzgerald has shuttled back and forth between Washington and Chicago, where his office’s political corruption prosecutions of top city officials have continued full-tilt.

Three weeks ago, Fitzgerald slipped unnoticed into Manhattan to attend former Department of Homeland Security official Michael J. Garcia’s swearing-in ceremony as the new U.S. attorney for the Southern District of New York, and a dinner afterward at an Italian restaurant.

The two reminisced about the terrorism cases they had prosecuted together more than a decade earlier as grunts in the same office. And they joked about how Fitzgerald quietly slipped Garcia a $20 bill the night he met his future wife in a nearby bar, so he could buy her a drink and still get home.

“For him to be there in New York with us meant a lot to me, my wife and my family,” Garcia said. “But it also says a lot about Pat. He has always been there for his friends and his colleagues, and that engenders a tremendous amount of trust and loyalty in him in return.”

Several FBI and Justice Department officials said that kind of trust could pay important dividends in the Libby case.

They said Fitzgerald typically works far more closely than other prosecutors with the federal agents who conduct the interviews and gather the evidence that form the backbone of a case.

He does so, they said, so there are no surprises when a trial gets underway and no daylight between what the government alleges and what the evidence could prove.

“Ask any FBI agent and they will tell you that the one prosecutor they would want to have by their side is Pat Fitzgerald,” said one FBI official who worked with Fitzgerald on the probe of the 1998 bombings of U.S. embassies in Kenya and Tanzania. He said Fitzgerald’s hands-on role in the FBI’s investigation, including his participation in SWAT raids in remote parts of Africa, allowed him to win convictions of several terrorists in federal court.

In the Plame case, the FBI official said, Fitzgerald’s attention to such evidentiary details could mean the difference between an airtight criminal prosecution and one that could be disassembled by experienced defense lawyers, particularly in such a politically charged environment. In this final week of the investigation, Fitzgerald dispatched FBI agents to re-interview witnesses, including neighbors of CIA agent Plame, the officer whose identity was revealed.

Mary Jo White, the former U.S. attorney for the Southern District of New York, his former boss, said Fitzgerald had a knack for envisioning creatively complex, even cerebral, prosecutions that only made sense to others months later at trial. She cited one in which his legal team charged a blind sheik and several terrorist co-conspirators on the almost unheard of charges of seditious conspiracy.

“The point is that when you get really smart lawyers, you sometimes will come up with solutions others won’t. It doesn’t mean you are overreaching or overzealous. It means that you are applying the law to the situation in front of you,” White said.