A Tale of Two Prosecutors
Mike Nifong is punished, but Patrick Fitzgerald isn’t.
Recently I have been thinking about the damage these two prosecutors have done to the legal profession. My thoughts came together after reading this article in the OpinionJournal. Ms. Rabinowitz did a fine job of explaining a lawyer’s perspective on these two cases. I will pursue the viewpoint of the simple man. The damage caused by Mike Nifong is fairly obvious and pretty simple to understand. Even for those of us without legal degrees it was obvious that the common sense portion of the judicial procedures were deliberately ignored. The civil rights cases that fine-tuned our judicial procedures and forced the creation of safeguards to protect our civil rights for all citizens were thrown out in this rush to judgment. Mike Nifong will pay the price and the rest of the lawyers are forewarned.
The damage to the legal profession caused by Patrick Fitzgerald is more insidious. The public has always been skeptical of the honesty and integrity of lawyers and this case does not help the situation. Mr. Fitzgerald was charged with investigating a possible crime about who leaked Ms. Plame’s identity to the press. It was a potential national security crime with some political overtones. Early on Mr. Fitzgerald had a problem that the alleged crime may not be a crime due to Ms. Plame’s special status at the CIA. Later when his investigation identified who leaked her identity and there was no indictment, the public assumed that the investigation was over. This was an investigation everyone wanted to end but Mr. Fitzgerald. The journalists were distraught that they were forced to reveal the unseemly side of political journalism, their cozy relationships with sources inside the government. The Democrat faithful were dismayed that they could not get either Rove or Cheney indicted for something. The Republicans were reminded that this was one of several inept CIA operations that led up to the Iraq war and highlighted the dysfunctionality in the Central Ineptitude Agency. To everyone’s surprise Mr. Fitzgerald continued his investigation. Eventually he was successful at convicting Mr. Libby of obstructing justice. For a simple man this should mean that Mr. Libby somehow hindered the efforts of Mr. Fitzgerald to determine who leaked Ms. Plame’s identity. However, we know that Mr. Fitzgerald already knew who leaked the information so Mr. Libby could not obstruct Mr. Fitzgerald in this area. The surprising piece is of information is Mr. Fitzgerald chose to not reveal this critical piece of information to Mr. Libby or close the investigation. Both Mr. Fitzgerald and Mr. Nifong chose not to reveal key information. Mr. Nifong’s actions were wrong and it is one of the reasons he is being disbarred. Somehow Mr. Fitzgerald’s actions are “right” even though it looks like Mr. Fitzgerald entrapped Mr. Libby in the obstruction of justice charge that did not have an effect on the investigation. It looks and smells like Mr. Libby is the designated fall guy for the alleged crime of leaking Ms. Plame’s identity for political purposes. This is where a simple man has problem with lawyer ethics. Mr. Fitzgerald’s actions look like he abused the trust and authority given to him when he went “fishing for a crime”. Mr. Fitzgerald can argue that he is pursuing the truth but the results are already different for the larger population. The conviction has created a more adversarial role between prosecutors and witnesses. Truth will be especially hard to pursue in this environment. Mr. Libby’s biggest mistake was not the perjury charge but in trusting Mr. Fitzgerald. Special prosecutors have absolute power and Mr. Fitzgerald showed that absolute power corrupts absolutely. I doubt other officials will forget this lesson any time soon. The Libby case has already caused at least one person to be less willing to testify before Congress. The Libby case is a good sign that a witch hunt is underway. For most officials the trade off between helping Congress or a special prosecutor find the truth and being indicted for some unknown crime if the investigation does not work out as planned for the prosecutor is pretty simple. It is not worth the risk to speak freely. Both Mr. Nifong and Mr. Fitzgerald show that prosecutorial abuse exists and is especially likely with cases that have political overtones. Hopefully we will re-establish some common sense in the Libby case and outlaw “fishing expeditions” by special prosecutors. We should try to make lawyers and the judicial process look honorable rather than petty. There is no moral high ground for Mr. Fitzgerald. He was “right” in the legalese that only a lawyer can appreciate but woefully short on the justice and fairness that a simple man can understand. He abused the system.