Fitzgerald is no Ken Starr

The same pundits who are absurdly smearing Fitzgerald as a partisan zealot were notably silent during the Whitewater disgrace.

By Joe Conason

Oct. 21, 2005 | With the mounting anticipation that Bush administration officials will be indicted in the CIA leak investigation, we have arrived at the stage that was always inevitable: a wave of preemptive attacks on special counsel Patrick Fitzgerald and his expected prosecutions.

While the attackers have various motives, their arguments tend to share the same specious themes: that the special counsel has "run amok"; that he is pursuing the "criminalization of politics"; that no crimes were committed except possibly in covering up administration misbehavior, which supposedly are not crimes worth prosecuting; and that Fitzgerald is somehow comparable to Kenneth W. Starr, the Whitewater independent counsel whose gross abuse of his office led to its abolition.

To anyone familiar with the most basic facts about Fitzgerald's prosecution, the quarreling with him and his methods simply sounds stupid. Do the Republican partisans who claim that he is running a "political" investigation realize that John Ashcroft's deputy appointed him? Do those same Republicans remember that the president endorsed his appointment and the purposes of the investigation? Do they know that the original demand for an investigation came from former CIA director George Tenet?

Having ascertained that someone probably had committed a crime by leaking Valerie Plame Wilson's CIA identity to Robert Novak and other journalists, the agency repeatedly asked the Justice Department to investigate. Eventually the department opened a case, but after three months and under intense criticism, Attorney General Ashcroft recused himself and asked his deputy to appoint a special counsel. Fitzgerald, already an appointee of the Bush administration as the U.S. attorney for the Northern District of Illinois, accepted the job when asked.

So whatever damage Fitzgerald may ultimately do, he is not an independent counsel unleashed by opposition forces to bring down the Bush administration. The president has endorsed his integrity and competence, and no one has uncovered a hint of a political motive or any conflict of interest.

The comparisons between Fitzgerald and Starr sound especially bizarre coming from pundits who failed to criticize the Whitewater prosecution back when their dissent might have mattered. In Slate, for instance, Jacob Weisberg accuses Fitzgerald of "Ken Starr-style foolishness" that may lead to "creative crap charges" -- presumably meaning indictments for perjury, conspiracy or obstruction of justice. And New York Times columnist John Tierney retrospectively criticizes the weakness of Starr's case against Bill Clinton.

My recollection is that Weisberg -- and others like him who now complain so bitterly about Fitzgerald -- voiced few criticisms of Starr or the Whitewater investigation. My additional recollection is that many of these same writers felt we simply must learn the "truth" about the ancient Arkansas land deal, even though it had nothing whatsoever to do with Clinton's presidency, national security or weapons of mass destruction, and therefore Starr's unpleasant methods, such as indicting various people on "creative crap charges" that had nothing to do with Whitewater, had to be accepted.

Tierney had little to say about Starr or Whitewater, except for occasional smirking asides about the Monica Lewinsky scandal. He certainly never exhibited any deep concern about the excesses of the independent counsel back then. Like so much of the whining that now emanates from Republican quarters about political prosecutions and prosecutorial excess, Tierney's complaint reeks of bad faith.

Yet an honest comparison with Starr is actually a useful exercise, if only because it helps to illustrate the phoniness of the grievances against Fitzgerald.

Starr was appointed by Republican judges, under the dubious influence of Republican Sens. Jesse Helms and Lauch Faircloth. He had no prosecutorial experience and proved to be an inept partisan. His investigation meandered repeatedly into new areas far afield from his original brief, took nearly five years to complete, required many grand jury extensions, and cost approximately $70 million. Starr and his prosecutors leaked promiscuously to favored reporters throughout the probe, thereby ensuring favorable press coverage and inflicting political damage on their White House targets.

Fitzgerald was appointed by the Bush administration's own deputy attorney general, as noted above, at the request of the CIA director. He boasts extensive experience and success as a federal prosecutor. He is not only skilled but absolutely free of any partisan taint, having prosecuted both Republicans and Democrats in Illinois. His investigation of the CIA leak will be wrapped up after less than two years, without any grand jury extensions. His office has been remarkably free of leaks, which may help explain why he gets none of the fawning publicity that was once lavished on Starr.

Critics like Weisberg, admittedly having no concrete knowledge of the evidence presented to the grand jury, suggest that those who revealed Valerie Wilson's identity were not motivated by revenge and committed no serious crime. Their destructive leak, Weisberg suggests, was "accidental," and he finds it impossible to believe that Bush administration officials would intentionally endanger CIA operatives. With equal ignorance of the evidence, Tierney echoes the current Republican spin downplaying the likelihood of any "real crime," a category that apparently doesn't include perjury or obstruction (unless perpetrated by a Democrat).

Considering the Bush administration's past treatment of dissenters and adversaries, however, it is entirely plausible that the officials now under scrutiny would have sought to intimidate Joseph and Valerie Wilson -- and that they may have done so recklessly, without thinking about the consequences of revealing her identity. Thuggishness and incompetence are not mutually exclusive.

As for whether perjury and obstruction are real crimes, Tierney and other would-be defense lawyers should answer this question. How can prosecutors require witnesses to tell the truth -- and refrain from obstructing justice -- if they are unable to prosecute those who would commit those offenses in covering up their misconduct?

In any case, the appellate judges who upheld the subpoenas of reporters Judith Miller and Matthew Cooper believed that Fitzgerald was on the trail of offenders who deserved to be caught. Unlike Fitzgerald's critics, they had seen some of the evidence -- and we should soon find out why they considered the crimes he is investigating to be very serious indeed.