Members of the Libby Lobby–those conservatives who have urged George W. Bush to pardon Scooter Libby–have decried special prosecutor Patrick Fitzgerald and derided the case he brought against Dick Cheney’s former chief of staff as a political persecution. “The criminalization of politics,” virtue cop/gambling addict Bill Bennett called it. This attack is the culmination of a campaign that has depicted Fitzgerald as a run-amok prosecutor who abused his power to follow an agenda.

Fitzgerald, though, has refused to cooperate with this campaign. Just ask Representative Henry Waxman, who was hoping to draw the prosecutor as a witness to a congressional hearing this week on the CIA leak case. Fitzgerald apparently had no interest in appearing at an event where he would have an easy opportunity to score political points and settle scores. More on that in a moment.

Fitzgerald has taken plenty of incoming from various quarters. For years, he has been pummeled by media rights champions for his decision to pursue reporters with subpoenas (which led to the imprisonment of then-New York Times reporter Judith Miller for 85 days). But Jack Shafer, media follower for Slate and once a denouncer of Fitzgerald and his methods, recently offered a post-verdict reassessment:

The press (including me) may have overreacted in regarding special prosecutor Patrick J. Fitzgerald as some sort of Torquemada, and our fears of a shredded First Amendment are starting to look a little overwrought.

Like other journalists, I had shared Shafer’s concern about the precedent Fitzgerald established. (Conspiracy declared: Shafer is a friend.) But it’s clear that there has not been a tremendous chilling effect, in that stories about CIA prisons, fired US attorneys, FBI abuses, and the like continue to appear. Official sources still leak–whether as whistleblowers informing the public of government misdeeds or as bureaucratic feuders looking to stab a foe in the neck.

So the portrayal of Fitzgerald as Wrecker of the First Amendment has been overblown, though–to be nuanced about it–he leaves behind a record that could be cited by other prosecutors to come. But what about the rightwing complaint that the Libby case was a political assault?

Fitzgerald claims to be an independent (in political party terms), and throughout the case he insisted the prosecution of Libby was not about the Iraq war or how the Bush administration had steered the country into the mess there. Libby advocates can dismiss these indicators; they can note it’s easy to claim partisan independence (what’s really in his heart?) and argue it was tactically wise for Fitzgerald to deny the case was related to the war. But there’s more that undermines the conservative case against Fitzgerald.

At the trial, Fitzgerald chose not to call Dick Cheney or Karl Rove to the stand. If this prosecutor was looking to cause political damage, he passed up two grand opportunities. He could have grilled each for hours. With the vice president, he could have asked a series of potentially embarrassing questions about Cheney’s involvement in the campaign to undermine former Ambassador Joseph Wilson, an administration critic. Cheney, according to Libby, was the first official to tell Libby that Wilson’s wife worked at the CIA’s Counterproliferation Division, which is a unit in the agency’s clandestine operations directorate. Fitzgerald could have questioned Cheney about that and about Cheney’s own efforts to gather information on the Wilsons and to leak selective pieces of intelligence to administration-friendly reporters (such as Judy Miller and the editorial page editors of The Wall Street Journal. He could have interrogated Cheney about the vice president’s curious lack of curiosity when Libby volunteered to tell the boss everything about his involvement in the leak affair. Cheney, according to Libby, indicated to Libby he didn’t want to know. (See here.)

Fitzgerald could have had a field day with the vice president. And he was prepared to do so–if Libby’s defense attorneys were to place Cheney on the stand. But after Fitzgerald refrained from calling the vice president as a witness, Libby’s lawyers decided it would be risky, if not foolish, to do so.

Ditto for Rove. With Rove on the stand, Fitzgerald could have asked Bush’s top strategist about his role in the leak. (Rove leaked to Bob Novak for the column that outed Valerie Wilson as a CIA officer, and he also disclosed information about her to Matt Cooper, then of Time.) Fitzgerald could have also asked Rove why he told White House press secretary Scott McClellan that he was not involved in the leak, how he managed to keep his job (given the White House position that anyone connected to the leak would be dismissed), and what Bush had known about Rove’s leak-related shenanigans.

Rove and Cheney on the stand–it would have been murder for the administration. Fitzgerald, though, didn’t pull the trigger. Such restraint undercuts the charge he mounted a political prosecution.

After the verdict, Representative Waxman, the Democratic chairman of the government reform committee, wrote to Fitzgerald and asked the prosecutor to talk to him and Representative Tom Davis, the senior Republican on the committee, about meeting with and/or testifying before the committee regarding “your views and the insights you obtained during the course of your investigation.” In a March 14 letter, Fitzgerald, who is also US attorney in Chicago, turned them down, explaining that the Libby case was still pending (due to possible appeals) and that he did not believe “it would be appropriate for me to offer opinions.” In a polite brush-off, he suggested that Waxman review the material introduced during the trial. (Despite receiving regrets from Fitzgerald, Waxman is going ahead with the March 17 hearing featuring Valerie Wilson.)

Fitzgerald is no grandstander. He did not exploit the opportunity to inflict maximum damage on the Bush administration. He brought a narrow case against Libby and convinced a jury. Trying to distort the narrative, Libby’s comrades claim that Fitzgerald’s endeavor was pure politics. The evidence shows they don’t have a case.


DON”T FORGET ABOUT HUBRIS: THE INSIDE STORY OF SPIN, SCANDAL, AND THE SELLING OF THE IRAQ WAR, the best-selling book by David Corn and Michael Isikoff. Click here for information on the book. The New York Times calls Hubris “the most comprehensive account of the White House’s political machinations” and “fascinating reading.” The Washington Post says, “There have been many books about the Iraq war….This one, however, pulls together with unusually shocking clarity the multiple failures of process and statecraft.” Tom Brokaw notes Hubris “is a bold and provocative book that will quickly become an explosive part of the national debate on how we got involved in Iraq.” Hendrik Hertzberg, senior editor of The New Yorker notes, “The selling of Bush’s Iraq debacle is one of the most important–and appalling–stories of the last half-century, and Michael Isikoff and David Corn have reported the hell out of it.” For highlights from Hubris, click here.