By Peter Slevin
Washington Post Staff Writer
Wednesday, February 2, 2005
If Osama bin Laden ever stands trial, there's a prosecutor in Chicago waiting to face him down. As a driven young lawyer in the 1990s, Patrick J. Fitzgerald built the first criminal indictment against the man who would become the world's most hunted terrorist. Both men have moved on, you might say, but Fitzgerald still imagines that fantasy date before a judge.
"If you're a prosecutor, you'd be insane if you didn't want to go do that," Fitzgerald says in the well-appointed conference room of the U.S. attorney's office here. "If there was a courtroom and they said someone has to stand up and try him, would I hesitate to volunteer? No. I'm not saying I'd be the best person to try him at that point, but I'd be lying if I told you I wouldn't be interested."
A solidly built former rugby player who enjoyed getting muddy and bloody well into his twenties, Fitzgerald is nothing but confident in his own skin. Just as he does not fear bin Laden, he seems to fret little that he is now tangling simultaneously with the Bush White House and the New York Times, two of the nation's most powerful and privileged institutions.
Fitzgerald, 44, is the special prosecutor investigating the leak of covert CIA operative Valerie Plame's name to columnist Robert Novak. The gifted son of an Irish doorman makes no bones about challenging the establishment. His office is also prosecuting former Illinois governor George Ryan and loyal associates of Chicago Mayor Richard Daley on influence-peddling and corruption charges.
He sees his task as getting to the bottom of things in ways as creative as the law allows. The law doesn't say you can't question a sitting president about his contacts or an investigative reporter about confidential sources. So Fitzgerald has done both, including quizzing Bush for more than an hour in the White House last June. His assiduous demands for answers from journalists alarms critics who believe he has created the greatest confrontation between the government and the press in a generation.
The Times editorial page has hammered Fitzgerald, saying that "in his zeal to compel reporters to disclose their sources, Mr. Fitzgerald lost sight of the bigger picture." His demand that Times reporter Judith Miller and Time magazine correspondent Matthew Cooper be forced to testify prompted the paper to call the case "a major assault" on relationships between reporters and their secret sources, the very essence of reporting on the abuse of power.
Fitzgerald is too politic to talk back, at least before he has wrapped up the case. A federal appeals panel in Washington is due to rule any day on whether the reporters must testify, and his work on the leak investigation is not done. But he appears to wonder what the fuss is all about. He says freely that he is zealous, a term he translates as passion within limits.
James B. Comey, deputy attorney general and unofficial president-for-life of the Pat Fitzgerald Booster Club, says no high-profile prosecutor ever provided less evidence that he was "doing something wacky."
"What's been interesting is seeing the media accounts and the columnists portray him as some sort of runaway prosecutor. That makes me smile," says Comey, who is largely responsible for Fitzgerald getting the Plame assignment. "Because there is no prosecutor who is less of a runaway than this guy."
The recently retired Illinois Republican tells a story about back in Al Capone's day, when Col. Robert McCormick, the imperious publisher of the Chicago Tribune, called FBI Director J. Edgar Hoover and demanded that he send someone to Chicago who could not be bought.
Hoover sent the untouchable Eliot Ness.
Now, as then, the U.S. attorney's job has the gloss of patronage. The late Chicago mayor Richard J. Daley used to say the U.S. attorney in Chicago is one of the three most important people in the state, and Peter Fitzgerald said he wanted "someone who couldn't be influenced either to prosecute someone unfairly or protect someone from being prosecuted unjustly."
So the senator, who as the state's senior Republican had the right to recommend a candidate to the White House, went to one of Hoover's successors for advice.
"I called Louis Freeh and said, 'Who's the best assistant U.S. attorney you know of in the country?' He said, 'Patrick Fitzgerald in the Southern District of New York.' " The senator then called Mary Jo White, who ran the New York office. Same question. Same answer.
At the time, Patrick Fitzgerald was trying suspects in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. He thought the call from a senatorial aide was a practical joke by one of his buddies. But as soon as their interview was over, the senator knew he had his man.
"I thought, 'He is the original Untouchable,' " Peter Fitzgerald says. "You could just see it in his eyes that he was a straight shooter. There were no levers that anyone had over him. He had no desire to become a partner in a private law firm. He has no interest in electoral politics. He wanted to be a prosecutor."
The staff of the 9/11 commission called him one of the world's best terrorism prosecutors. He convicted Sheik Omar Abdel Rahman in the 1993 World Trade Center bombing and all four defendants in the embassy bombings, which had left 224 people dead. He extracted a guilty plea from Mafia capo John Gambino and became an authority on bin Laden, whom he indicted in 1998 for a global terrorist conspiracy that included the African bombings.
"His thoroughness, his relentlessness, his work ethic are legendary," says terrorism expert Daniel Benjamin, a former member of the National Security Council.
Seeing Fitzgerald in action, says Los Angeles lawyer Anthony Bouza, a college classmate, is "like watching a sophisticated machine." Colleagues speak in head-shaking tones of Fitzgerald's skills in taking a case to trial. A Phi Beta Kappa math and economics student at Amherst before earning a Harvard law degree in 1985, he has a gift for solving puzzles and simplifying complexity for a jury.
He's no slouch at stagecraft, either. At the trial of a Mafia hit man, the defense argued that a ski mask -- part of what Fitzgerald called a "hit kit" that included surgical gloves, a gun and hollow-point bullets -- was really just a hat. (The defense also said the surgical gloves were for putting ointment on the defendant's ailing dog.) During closing arguments, Fitzgerald startled the jury by rolling up one leg on his lawyerly dark suit.
"These are just shorts, ladies and gentlemen," he said, according to one account. "These are just shorts."
Fitzgerald's parents, born on opposite sides of Ireland's County Clare, met in the United States. They raised their son in Flatbush and guided him to a scholarship at a Jesuit high school. He worked as a school janitor in Brooklyn to make money for college and spent summers opening doors at an upscale co-op building on East 72nd Street in Manhattan. (His father worked at a building on East 75th, just off Madison Avenue.) It is part of Fitzgerald lore that he bit his tongue when rich apartment dwellers talked down to him as "just the doorman."
After law school, he spent three years in private practice before fleeing to the prosecution side. In the New York days, his married friends chided him about his workaholic, overachieving, hopelessly bachelor life. One time, visiting the small Brooklyn studio where Fitzgerald lived, a lawman noticed papers piled on the gas stove. Don't worry about the fire hazard, Fitzgerald told him -- "I've never turned it on."
"The advantage he had over me," Comey says, "was he was much smarter and he had no life. He could sit there and never go home. Fitz would go in there and just sit and read through files. It would almost be as if he was photographing them."
Fitzgerald did get out to exercise, and he even learned to scuba dive, an image his friends still cackle about.
"I'm certified as a scuba diver, but I can't really swim," Fitzgerald explains. "I'm very good at sinking."
Above all, Fitzgerald, who is 6 feet 2 and weighs 215 pounds, played rugby, a sport defined by toughness and camaraderie. He played at Amherst, at Harvard, and for several years in Manhattan. "You get every stress out of your system. You kick the ball, catch the ball, tackle, be tackled. At the end of the game, there's no unspent energy left. I did get bloodied a fair amount."
He adds, "That was not the goal."
He spit fire last year when reporters asked whether the racketeering indictment of Muhammad Hamid Khalil Salah, a fundraiser for the Islamic militant group Hamas, was timed to boost President Bush's reelection campaign. The case was trumpeted first by Attorney General John Ashcroft.
"I am not running for an election. I'm not part of a political party," Fitzgerald said at the time. "The election is irrelevant to this case. The reason we brought this case now is we're ready to proceed."
Nor has Fitzgerald signaled where his own ambitions lie. He insists that he has already advanced further than his imaginings, but he is clearly aware of his emerging star status. Asked about the notion of becoming FBI director after Robert Mueller, another prosecutor who quit private practice to put bad guys behind bars, he laughs. "That's probably Director Mueller when he's having a bad day, trying to unload it on somebody else."
He did not say he was uninterested, just that he is not thinking beyond his current job.
In the high-profile Chicago job, he still works killer hours and he chairs the attorney general's advisory panel on terrorism. And while he will not publicly discuss details of love, politics or religion, others say his social life has improved, along with his apartment. "It's a really nice place. My wife walked in and said, 'I know Pat's got a girlfriend,' " says Comey. "Fitz wouldn't know eggshell from burnt orange, but he's got a life."
Fitzgerald says he remembers where he came from and pinches himself when he realizes where he is.
"I'm very indebted to my parents. They were very hardworking, straight, decent people. The values we grew up with were straight-ahead. We didn't grow up in a household where people were anything but direct," Fitzgerald says. "I'm hoping that if you're a straight shooter in the world, that's not that remarkable."
Arthur Sulzberger Jr., defending his reporters, blasted Fitzgerald and said, "The government's investigation into the Valerie Plame case has moved dangerously off course." Not only has the liberal editorial page sliced into Fitzgerald, but conservative columnist William Safire called Fitzgerald a "runaway Chicago prosecutor" and warned that a pair of his investigations are "this generation's gravest threat to our ability to ferret out the news."
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.
"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."
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."