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The Prosecutor Never Rests

President Richard Nixon kept an enemies list and waged an epic fight over the publication of the Pentagon Papers, settling only when the Supreme Court backed the right of The Washington Post and New York Times to publish. Not a few presidents have tried, usually fruitlessly, to identify leakers and punish the reporters all too glad to publish those leaks.

But Fitzgerald has ignored the old saw about arguing with someone who buys ink by the barrel. In both the Plame case and an unrelated terrorism investigation, he is trying to force Times reporters to reveal their confidential sources, a quinella not attempted in modern memory.

"If you're not zealous, you shouldn't have the job," says U.S. Attorney Patrick J. Fitzgerald, whose subpoenas of reporters have prompted complaints. (John Gress For The Washington Post)

"In all his cases, Pat keeps the blinders on and goes forward to where the facts lead him," says David Kelley, the acting U.S. attorney in New York and former head of the Justice Department's 9/11 Task Force. "He is not influenced by anything except by those things that ought to influence him. I wouldn't call it zeal. I would call it courage."

Many legal experts say Fitzgerald has the law on his side in the Plame investigation. The Supreme Court ruled narrowly in 1972 that reporters could be required to testify to a grand jury if the prosecutor proved a legitimate need.

Chief U.S. District Judge Thomas Hogan backed Fitzgerald and ordered Miller and Cooper to testify. Fitzgerald's tactics are not "a fishing expedition or an improper exercise of prosecutorial authority," he said.

Zeal or courage? Where one side sees dangerous meddling, another sees creativity. The divergent takes are evident in the Plame investigation, a quest to find out who leaked her name and why. Faced with confidentiality pledges that reporters consider sacrosanct, Fitzgerald got one source, vice presidential Chief of Staff I. Lewis Libby, to grant journalists a limited release from their confidentiality pledge.

Reporters, including two from The Washington Post, ultimately answered a narrow list of questions regarding their conversations with Libby. One Fitzgerald backer called it "elegant thinking that I would expect from him." But some journalists worried that a secret source brave enough to expose wrongdoing could now be pressured by prosecutors to reveal his cooperation with reporters.

Even more troubling to many press analysts is Fitzgerald's effort to review the telephone records of Miller and fellow Times reporter Philip Shenon in another case. The prosecutor wants to know how the Times learned of the impending search of two Islamic charities then under investigation by Fitzgerald's office. The Times called the charities for comment, allegedly alerting them to the raid, Fitzgerald says.

In a recent court hearing, Fitzgerald told U.S. District Judge Robert W. Sweet that he is sensitive to First Amendment concerns. He said the reporters are not his targets: "We want to find out who leaked national security information."

Times attorney Floyd Abrams countered, "If we start down the road of permitting a federal prosecutor to obtain secret information without which journalists cannot function, the world will change for the worse because confidential sources will no longer be available."

The Chicago Tribune, which has cheered Fitzgerald's crime-fighting energy, published a Jan. 23 editorial titled "Mr. Fitzgerald, Back Off." It called his pursuit of the reporters "a direct affront" to the First Amendment rights of the free press.

Of the prosecutor's assertions of sensitivity, the paper scoffed, "That's rubbish."

Playing Hardball

"Do I have zeal? Yes. I don't pretend I don't," Fitzgerald says. "As a prosecutor, you have two roles: Show judgment as to what to go after and how to go after it. But also, once you do that, to be zealous. And if you're not zealous, you shouldn't have the job. Now sometimes 'zealous' becomes a code word for overzealous and I don't want to be overzealous. I hope I'm not."

Media advocacy circles are not the only places where Fitzgerald's enthusiasm has been noted with alarm. In an unusually bitter fight that surfaced in late January, Fitzgerald drew angry criticism from a Chicago federal judge who said one of Fitzgerald's attorneys improperly delivered secret grand jury material to a private attorney in a civil case.

U.S. District Judge James F. Holderman demanded an investigation of Fitzgerald and several prosecutors. Fitzgerald blazed back, charging in an unusually pointed brief that the judge had "displayed a disturbing lack of objectivity." He accused him of "petty harassment" of prosecutors and asked an appeals court to remove the judge from the case because of a conflict of interest involving his wife.

The question of zeal surfaced yet more prominently in two Chicago terrorism cases -- investigations into the Global Relief and Benevolence International foundations, which inspired a less than flattering analysis by the 9/11 commission staff.

The staff report last year said the federal government's treatment of the two charities raised "substantial civil liberty concerns" and revealed a critical difference between asserting "links" to terrorists and proving concrete support. In the case, Fitzgerald again had the backing of Ashcroft, who jetted to Chicago in October 2002 with a media contingent in tow and vowed to halt "the source of terrorist blood money."

But the trial judge and the 9/11 commission staff concluded that Fitzgerald failed to prove that Enaam Arnaout, the Benevolence executive director, had provided financial support to al Qaeda, as the indictment had alleged. A federal judge, referring to the prosecution's evidence, said the defendant appeared primarily a victim of guilt by association.

On the day the trial was to begin, Arnaout pleaded guilty to a fraud charge. Judge Suzanne Conlon made clear in ordering Arnaout to prison for 11 years that he had not been convicted of a terrorism crime.

Fitzgerald said in the interview that he is not disappointed by the plea bargain that ended the case, only by what he considers Arnaout's later failure to tell what he knows. Of Conlon, he said, "She thought we hadn't connected the dots. I thought we had."

"When you're a pitcher, you throw the ball over the plate and if you think you threw a strike and the umpire says it's a ball, it doesn't matter how much you think it's a strike. You put your case on. You don't walk into court out of fear that when you do it, either a judge will disagree with some of what you say or a defense attorney will call you overzealous."

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