The Wall Street Journal
Chicagos jester politician humiliates the Justice Department.
Rod Blagojevich was charged with everything from shaking down a Chicago childrens hospital to attempting to sell or trade the U.S. Senate seat once held by President Obama yet on Tuesday the former Illinois Governor was convicted on only the least serious of the 24 felony counts against him. The fiasco marked another defeat for U.S. Attorney Patrick Fitzgerald whose conduct more and more suggests another unaccountable federal prosecutor run amok.
Blagojevich may or may not be corrupt though he has repeatedly proved his stupidity. In any event Mr. Fitzgeralds legal team failed to persuade a jury that Blagojevich was guilty of racketeering conspiracy wire fraud extortion kickback schemes and a litany of other crimes despite five weeks of argument and testimony that included incriminating selections from thousands of wiretapped phone calls. The defense did not call a single witness. The jury also deadlocked on four charges against Blagojevichs brother while his chief of staff earlier copped a plea.
Blagojevichs sole conviction was for lying to FBI agents investigating his fund raising. Under questioning he had suggested that he maintained a firewall between politics and government and that he does not track or want to know who contributes to him or how much they are contributing to him. If such a stock denial is a crime we can think of several hundred politicians who could also be convicted.
A more triumphant outcome might have been expected judging by Mr. Fitzgeralds bravura press conference two years ago which he held following a pre-dawn arrest at the Blagojevich home. Then the U.S. Attorney spoke of what we can only describe as a political corruption crime spree and accused Blagojevich of the most appalling conduct that would have Lincoln roll over in his grave. It was a truly new low Mr. Fitzgerald told the world.
A truly new low would truly be something in Chicago politics where money and power seem to be especially fungible. But even Chicago politicians deserve the full and fair protection of the law while the Fitzgerald method is to abuse the legal process to poison media and public opinion against high-profile unsympathetic political targets.
As the former Justice Department lawyer Victoria Toensing noted in these pages at the time Mr. Fitzgerald violated prosecutorial ethics by speaking beyond the four corners of the complaint to use the criminal law vernacular for the facts at issue thus possibly tainting the jury pool.
But then this was merely one of Mr. Fitzgeralds extrajudicial public declarations. Another notable episode occurred during his pursuit (as special prosecutor) of former Vice Presidential chief of staff Scooter Libby in the Valerie Plame affair. At a 2005 press conference Mr. Fitzgerald implied that Mr. Libby had obstructed his investigation into who leaked the former CIA analystss name even though he knew from the start that the real leaker was Richard Armitage.
Then there was the railroading of Conrad Black the conservative newspaper baron who was convicted in 2007 using the infinitely malleable honest services fraud law. The Supreme Court junked much of that law earlier this year leading to Mr. Blacks release from prison. The jury had earlier dismissed nine of the 13 charges Mr. Fitzgerald filed.
This pattern points to a willful prosecutor who throws an exaggerated book at unpopular defendants and hopes at least one of the charges will stick even as he flouts due process and the presumption of innocence when the political winds are high. If Mr. Fitzgerald doesnt resign of his own accord the Justice Department should remove himespecially after such other recent examples of prosecutorial bad faith or bad judgment involving Blackwater contractors in Iraq the forgotten backdating accounting scandal and the late Senator Ted Stevens.
Prosecutors have vowed to retry Blagojevich this fall on the other 23 mistrial counts. But if he really is guilty then incompetence alone is grounds for Mr. Fitzgeralds removal.
