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Dissing Fitzgerald & Prosecutorial Politics

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November 24, 2005
When special prosecutor Patrick Fitzgerald's investigation into the outing of covert CIA officer Valerie Plame is debated on TV, one of Fitzgerald's fiercest critics has been Joseph diGenova, who is described as a former independent counsel himself.

At times diGenova has been remarkably strident, sounding more like an angry defense attorney for George W. Bush's White House than someone who could have plausibly worn the title "independent" when he investigated an alleged abuse of government power by George H.W. Bush's administration a dozen years ago. [More on that below.]

For instance, during a Nov. 16, 2005, appearance on Fox News, diGenova lashed out at Fitzgerald following the the admission by the Washington Post's Bob Woodward that a Bush II administration official had told him about the identity of CIA officer Plame in mid-June 2003. That apparently was before former vice presidential chief of staff Lewis Libby began peddling information about Plame's identity to other reporters.

Citing Fitzgerald's statement at an Oct. 28, 2005, press conference that Libby was then the first known official to begin talking to reporters about Plame, DiGenova argued that Woodward's admission justified the dismissal of Libby's five-count indictment on charges of perjury, lying to FBI investigators and obstruction of justice.

"By alleging that Mr. Libby was in fact the initial source, [Fitzgerald] publicly bootstrapped his case on that fact," diGenova said. "That is now totally false and it requires him now, under Justice Department guidelines, to seriously consider dismissing the case because you cannot indict when there's a reasonable doubt and I believe now that there is reasonable doubt about Mr. Libby's state of mind."

Though Fitzgerald had only said that as of Oct. 28 Libby was the first "known" official to tell reporters about Plame - and that fact seems to have little bearing on Libby's alleged deceptions - diGenova echoed the arguments of Libby's defense team that Fitzgerald's news conference comment was somehow important.

"I think this it is a very serious development for the prosecutor," diGenova said. "I can predict that he will be holding no further news conferences because he has just been hoisted by his own petard from the last news conference he held."

Even Fox News anchor Brit Hume was perplexed by diGenova's hostility toward Fitzgerald. "You are quite sharply a critic of him," Hume noted. "Why?"

"Because I believe that that news conference was a disgrace," diGenova responded.

DiGenova's comments spread quickly around right-wing blogs adding more fuel to the animosity Bush's defenders are directing at Fitzgerald, the U.S. Attorney in Chicago who was named by the Justice Department to handle the Plame case in December 2003 because then-Attorney General John Ashcroft was too close to the leak suspects.

But another question raised by diGenova's intemperate comments is how a partisan Republican prosecutor could have been named independent counsel to handle a sensitive political investigation in 1992, when top aides to George H.W. Bush were implicated in a scheme to destroy Bill Clinton's candidacy by violating the Democratic candidate's privacy rights in a government search of his passport file.

Parallel Cases
In retrospect, the so-called Passport-gate affair and the Plame-gate investigation have many parallels, both involving White House abuse of its access to government secrets and calculated leaks to the press to undermine a political adversary. But the two prosecutors - diGenova and Fitzgerald - approached their duties very differently, with diGenova seemingly determined not to find wrongdoing in contrast to Fitzgerald's dogged strategy to get to the bottom of the mystery.

The two cases occurred at politically sensitive moments for the two Bush presidents.

George W. Bush's aides allegedly leaked classified information about Plame's CIA work in mid-2003 to undermine her husband, former Ambassador Joseph Wilson, because he had emerged as a leading critic of Bush's case for war with Iraq. Wilson had challenged Bush's claims about Iraq seeking enriched uranium from Africa, just as it was becoming apparent that Iraq lacked the weapons of mass destruction that Bush had cited as the principal justification for his invasion.

In 1992, George H.W. Bush was trailing Clinton in the polls and Bush's advisers hoped to assure the president's reelection by finding derogatory information in Clinton's passport file. Under White House pressure, State Department officials conducted a late-night search of Clinton's passport file, looking for a rumored letter that Clinton supposedly had written while a college student at Oxford College seeking to renounce his U.S. citizenship.

Though the letter proved non-existent, Bush aides seized on staple holes and a tear in the corner of Clinton's passport application - most likely where a check or photo had been attached - to fashion a criminal referral around the possibility that a Clinton friend had tampered with the file to remove the apocryphal letter.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at

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