May, 2005

I try and try to understand what Patrick J. Fitzgerald has in his mind as a Special Prosecutor, but then I was never able to figure out Ken Starr either. It seems Special Prosecutors become giddy with power and lose focus.

C'mon Pat, if you want to know who leaked information to Robert Novak about Valerie Plame, stop torturing Judith Miller and Matt Cooper with threats of jail time. Do something really creative and daring. Ask Robert Novak. He’s the guy who wrote the column.

It’s easy . . . call him on the phone and just cut right to the chase . . . “Mr. Novak, this is Patrick Fitzgerald and I’m asking you who contacted you with the Valerie Plame info.” If he hangs up on you or tells you to go fly a kite, get Judge Thomas F. “Hang ‘em High” Hogan to sentence Novak to 18 months for contempt. Unless you’re afraid of Novak. He may be a bit too much the celebrity columnist for a guy like you, who picks his fights among the lesser lights and is very aware of who might cause him political damage.

Contempt is an interesting charge and usually comes from one of two sources. Either a judge is personally pissed off that someone didn’t take him seriously or a prosecutor asks for (and gets) a contempt citation issued against a defendant because they wouldn’t answer his question. It's not all that courageous for a prosecutor to ask a contempt citation for not being a snitch, but Fitzgerald is a petty foot-stamper when he can't get his way. The danger is that a citation can as easily elicit contempt of both the prosecutor and the judge; a different contempt, the public contempt born of judicial hubris and prosecutorial puffed-uppedness.

Fairness dictates that one doesn’t go after the small fish for crimes of the big fish. Fairness generally obtains, except in rare cases such as charges of military coverup by the big fish (Rumsfeld as an example) or numero uno syndicated columnists (Robert D. Novak as an example).

No need to thank me for the examples, glad to do it.

My opinion (this is after all an opinion column) is that if the best Special Prosecutor Patrick J. Fitzgerald can come up with after an 18 month investigation is a hissy-fit against a couple of minor journalists, then Fitzgerald can’t be depended upon to find his ass with both hands and is not a guy to go fishing with.

Novak says that two anonymous senior administration officials told him the Plame story. Were they anonymous because Novak kept them that way by agreement or because they didn’t identify themselves to Novak? If the first, then law should trump agreement, even if it’s bad law and needs to go all the way to the Supreme Court. But the target would be Novak, not Miller or Cooper. If the second, then Novak has no business reporting as fact that which he learns by innuendo.

Either way, Fitzpatrick makes a mockery of his office by the incredibly inept handling of this affair. One can only hope that the Supreme Court throws the case into the Potomac where, along with Fitzgerald’s reputation, it belongs.

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