By Peter Slevin and Carol D. Leonnig
Washington Post Staff Writers
Monday, October 24, 2005
CHICAGO, Oct. 23 -- Patrick J. Fitzgerald's final witness was behind bars, refusing to testify, and no one was budging. Hunting for room to maneuver, the special counsel talked with one side, then the other. He drafted a letter that nudged the witness and needled I. Lewis "Scooter" Libby, the vice president's chief of staff.
Three days later, Libby put fingers to keyboard and told New York Times reporter Judith Miller that she was freed from her promise to protect his identity. He praised her mightily and urged her to "come back to work -- and life." Satisfied, she quit jail after 85 days, testified to Fitzgerald's grand jury and surrendered details she had vowed never to reveal.
Miller's testimony carried Fitzgerald one step closer to the climax of his investigation into the leak of a CIA operative's name, an inquiry that a federal judge termed "exhaustive" and President Bush called "dignified." In typical fashion, the Chicago prosecutor interceded personally, with a blend of toughness and flexibility, and pocketed what he needed.
Fitzgerald's most difficult and contentious choices -- whether to seek criminal charges -- remain to be announced, possibly this week. Yet in a case with huge political stakes for the White House, a portrait is emerging of a special counsel with no discernible political bent who prepared the ground with painstaking sleuthing and cold-eyed lawyering.
So far, Fitzgerald has given neither Republicans nor Democrats grounds to question his motives as he excavated the machinations of a White House that prided itself on its discipline and its ability to push its pro-war message. He did not blink, lawyers and witnesses say, and he did not leak.
News organizations have complained bitterly that Fitzgerald fractured the special relationship between reporters and their sources. White House allies have warned that he will criminalize routine Washington political transactions or impute a coverup where no provable original crime occurred. But federal judges have strongly backed Fitzgerald, who presented secret evidence to persuade an ideologically diverse appeals court that someone committed "a serious breach of public trust."
Fitzgerald, 44, is investigating allegations that Bush administration officials illegally leaked CIA officer Valerie Plame's identity to reporters to discredit her husband, Joseph C. Wilson IV, a former diplomat who challenged White House justifications for the Iraq war. Evidence suggests senior officials including Libby and White House Deputy Chief of Staff Karl Rove were more deeply involved in the events than the White House initially said.
Fitzgerald was recruited to the case in December 2003 by close friend James B. Comey, deputy attorney general to John D. Ashcroft. He was two years into a posting as Chicago's U.S. attorney, a job he won partly because he was a seasoned outsider with no evident political agenda, qualities that inspired Comey to appoint him to a case with powerful partisan overtones.
Known for convicting Sheik Omar Abdel Rahman in the 1993 World Trade Center bombing and for compiling the first criminal indictment against Osama bin Laden, Fitzgerald is an Irish doorman's son who attended a Jesuit high school, then Amherst College -- where he was a Phi Beta Kappa mathematics and economics major -- and Harvard.
He registered to vote in New York as an independent. When he discovered that Independent was a political party, he re-registered with no affiliation. Illinois citizens know him for pursuing Republicans and Democrats with equal fervor. Former governor George Ryan (R) is on trial on corruption charges, and a growing number of aides to Mayor Richard M. Daley (D) face influence-peddling charges.
Famous among colleagues for remembering minutiae, he keeps extraordinary hours while handling the leak investigation and managing a Chicago office with more than 150 lawyers. Dick Sauber, an attorney for Time magazine reporter Matthew Cooper in the leak case, said Fitzgerald "worked the case down to the small details. He was the one who knew the obscure fact in a document and knew where to find it."
Fitzgerald laughed at portrayals of himself on Comedy Central, but he was never coy when talking business, said Sauber, who recalled warning Cooper that jail would certainly be next if he lost his appeal.
Someone present when Fitzgerald questioned a witness said he was glad not to be a target.
"He's that really strict judge that everyone fears, not because they think he's going to do the wrong thing, but because they're afraid he might do the right thing," said the source, who has ties to the White House and requested anonymity.
"As White House staffers," he continued, "you had generals and Cabinet secretaries being deferential to you. He didn't care what you'd done or how well you knew the president."
Chuck Rosenberg, U.S. attorney in Houston, said Fitzgerald's doggedness is legendary.
"Pat takes the same approach to all his cases. He works them harder and knows them better than any soul on the planet," Rosenberg said. "I'll sometimes ask Pat a question about something in my district. Not only will I get an e-mailed answer dated at 2 o'clock in the morning, but it will go on for three single-spaced pages."
While supervising at least four lawyers and an FBI team in the leak case, Fitzgerald jetted between his downtown Chicago office and borrowed space at 1400 New York Ave. NW, not far from the courthouse where the grand jury meets most Wednesdays and Fridays. In its first 15 months, the investigation cost $723,000, according to the Government Accountability Office.
"He keeps the investigation within the team," said an attorney who works with him in Chicago. Such discretion frustrated defense lawyers, potential targets and reporters alike. As one figure told Time, "If he played his cards any closer to the vest, they'd be in his underwear."
Fitzgerald and his team started with basics, assembling many details before formal questioning began. They cast a wide net for evidence of a conspiracy within the Bush administration, scouring phone records and visitor logs. They tracked a State Department document to Air Force One and obtained notes and correspondence from the upper echelons of the White House. They delved into the deliberations of the White House Iraq Group, created in August 2002 to help the administration build support for the war.
Privately or in front of the grand jury, the special counsel questioned Bush, Cheney, former secretary of state Colin L. Powell and former CIA director George J. Tenet, along with many aides and spokesmen, particularly on Cheney's staff.
To exhaust all possibilities, Fitzgerald questioned a number of witnesses under oath even when he was confident they could add little to the grand jury's knowledge.
Legal sources say he studied inconsistencies and forgotten facts from witnesses, including Rove, whose early testimony differed from Cooper's recollections. Rove, who spoke to the grand jury four times, changed his story after failing to mention that he discussed Wilson and his wife with the Time correspondent.
A critical early success for Fitzgerald was winning the cooperation of Robert D. Novak, the Chicago Sun-Times columnist who named Plame in a July 2003 story and attributed key information to "two senior administration officials." Legal sources said Novak avoided a fight and quietly helped the special counsel's inquiry, although neither the columnist nor his attorney have said so publicly.
At least five other reporters -- Miller, Cooper, NBC newsman Tim Russert and Washington Post reporters Walter Pincus and Glenn Kessler -- produced testimony. Members of the media high and low were none too happy to see Fitzgerald demand information from conversations intended to stay private. They also worried that, in his methods, he was setting a dangerous precedent that would make sources less likely to speak up about wrongdoing.
While Cooper and Miller initially refused to cooperate, Fitzgerald made pragmatic accommodations with the others. In the case of Pincus, Fitzgerald structured the testimony to allow him to avoid revealing the name of his source, even though Fitzgerald and the grand jury already knew it. That preserved the reporter's ability to say he had not broken his promise. The name has never been made public.
"The basic thing is he was enormously fair," said Pincus, a veteran national security reporter whose sources waived confidentiality. "There were no threats, just a discussion of how to solve this dilemma. He understood. He never pressured me."
By October 2004, Fitzgerald announced he was "for all practical purposes" finished. The final pieces he wanted were the testimony of Miller and Cooper, who had each discussed Plame with either Rove or Libby. Using a provision that allowed the submission of evidence in secret, Fitzgerald persuaded U.S. District Judge Thomas F. Hogan, a Reagan appointee, to order the reporters to testify or face jail for contempt.
Miller and Cooper appealed, but three judges of the U.S. Court of Appeals backed Hogan, including Clinton appointee David S. Tatel, considered one of the most liberal voices on the court. Public copies of Tatel's opinion included blank pages where the judge discussed the secret evidence. He called Fitzgerald's investigation "exhaustive" and said the testimony of the two reporters "appears essential to remedying a serious breach of public trust."
Cooper testified after losing the appeal and receiving a confidentiality release from Rove. When Fitzgerald rejected a compromise that would have kept Cooper from facing the grand jury, he insisted that he was not out to get reporters or dismantle the First Amendment, despite accusations from some constitutional lawyers and editorial writers that he was doing just that.
"It's not personal," Fitzgerald said, according to Sauber. "It's my job."
Miller chose jail, setting the stage for the last piece of Fitzgerald stagecraft. Periodically calling lawyers, he eventually learned from Miller attorney Robert S. Bennett that she might relent if she received a clear and personal waiver from Libby.
In three single-spaced pages, the special counsel wrote Libby attorney Joseph A. Tate that it would be seen as "cooperation with the investigation" if Libby reiterated the confidentiality release he had previously given Miller.
But in a twist apparently designed to get Libby's attention, Fitzgerald said twice that he suspected Libby may have preferred Miller to keep quiet about their talks.
Libby, after months of silence, quickly wrote Miller. He told her she was missed. He declared that he would be better off if she testified, and he made clear he was freeing her from her pledge.
Miller testified, and Fitzgerald prepared to wrap up his inquiry, but not without a final surprise.
A lawyer familiar with Miller's grand jury testimony said the special counsel asked her to discuss all relevant conversations she had with Libby before Novak published Plame's name. When Miller detailed two July 2003 discussions and said she could not remember any others, Fitzgerald begged to differ.
He showed her a page from a White House logbook that recorded a June 23 visit by Miller to Libby at the Old Executive Office Building. Miller corrected herself and soon produced for the grand jury her notes from that meeting.
Soon after, Fitzgerald called it a day.
Leonnig and research editor Lucy Shackelford reported from Washington.