What does Blagojevich case mean for Fitzgerald?

[August 21, 2010]  CHICAGO (AP) -- With a string of high-profile prosecutions under his belt, U.S. Attorney Patrick Fitzgerald exuded confidence when he first presented corruption charges against former Illinois Gov. Rod Blagojevich in late 2008.

The prosecutor, once described as "Eliot Ness with a Harvard law degree and a sense of humor," raised eyebrows when he appeared to go beyond the normally dry recitation of facts by accusing Blagojevich of a "political corruption crime spree" that would make "Lincoln roll over in his grave."

But this week in the courtroom, the man often mentioned as a candidate to be the next FBI director suffered a setback: Jurors deadlocked on all but one charge. The failure to win a bigger conviction has now raised questions about possible missteps by prosecutors -- and about Fitzgerald's future.

"He's been there for three presidential terms, and that's unusual," said Phil Turner, who was a federal prosecutor in Chicago before Fitzgerald's tenure began. "The power can go to your head. ... You can't get personal with defendants, and he does."

Most legal observers in Chicago insist that a single case, even one as notable as the Blagojevich prosecution, does not undermine decades of success.

"I think his legacy of success is quite entrenched," said Harold Krent, dean and professor at the Chicago-Kent College of Law. One setback will not "do much to tarnish the image."

The 49-year-old Fitzgerald rose to prominence by convicting another former Illinois governor, George Ryan, of corruption, and media mogul Conrad Black of defrauding investors.

He was also tapped to be the special prosecutor in Washington's CIA leak case, eventually convicting former Vice President Dick Cheney's top aide, I. Lewis "Scooter" Libby for perjury and other offenses.

In the Blagojevich investigation, some critics have questioned whether Fitzgerald moved too fast to arrest the former governor, whether his team put on an overly complicated case and whether he became too personally involved in the matter.

Born in Brooklyn, N.Y., the son of a Manhattan doorman, Fitzgerald spent years advancing his career one criminal case at a time. From the East Coast to Chicago, he earned a reputation as a tough anti-corruption prosecutor who worked, as one observer put it, "28 hours a day."

For more than two years in New York, he was so busy he never got around to getting the gas hooked up to the stove in his apartment.

After this week's hung jury, two of the nation's largest newspapers struck hard at Fitzgerald, with one saying he should drop the Blagojevich case, and a second calling on him to resign.

A Washington Post editorial said the prosecutor got his shot at Blagojevich and lost and "should stand down before crossing another fine line -- the one that separates prosecution from persecution."

The same day, the Wall Street Journal wrote, "If Mr. Fitzgerald doesn't resign of his own accord, the Justice Department should remove him."

On Tuesday, jurors convicted Blagojevich of only the least serious of 24 corruption charges -- lying to the FBI -- and deadlocked on 23 others, including the accusation that the former Democratic governor schemed to sell or trade an appointment to President Barack Obama's former Senate seat.

Prosecutors said they intend to retry Blagojevich as quickly as possible.

In interviews after the verdict, jurors said the government's case was too confusing and too long, and they wanted a "smoking gun" to connect the defendant's profanity-laden talk on government wire taps with actual crimes.

Some jurors and legal analysts said Fitzgerald may have had Blagojevich arrested too soon.

It's "not as easy to see the elements of a crime because it was nipped in the bud too early," said Krent, of the Chicago-Kent College of Law.

But a former prosecutor who worked with Fitzgerald on the CIA leak case defended the decision to arrest Blagojevich before he could take his alleged plans further.

"All things being equal, you want to swoop down, say, after a drug deal goes through," said Peter Zeidenberg, who now works in private practice in Washington. "But you're talking here about a Senate seat. Are you really going to swoop down after someone becomes the senator? What do you do then?"

The prosecution team probably had a lot of discussions about a potential constitutional crisis if the governor's alleged scheme was allowed to go forward, he said.

Others have said Fitzgerald's statements when he announced the charges against Blagojevich went too far and raised expectations too high.

"He violated the code of ethics, the standard of the Justice Department in holding his press conference," said Victoria Toensing, a former Justice Department official who's now a Washington lawyer.

Zeidenberg acknowledged that Fitzgerald's comments may have been "unnecessarily colorful," but he took issue with claims that Fitzgerald blew the Blagojevich case.

"Hung juries are not a loss for the government as they are not a win for the defendant. Ties don't go to the defendants -- they are just ties," he said.

Earlier in his career, Fitzgerald served 13 years as an assistant U.S. attorney in the southern district of Manhattan, helping prosecute organized crime as well as terrorism cases involving the 1993 bombing of the World Trade Center and the 1998 bombings of U.S. embassies in Kenya and Tanzania.

The intensely private prosecutor is married to a schoolteacher and has a son, Conor, who was born in December.

His strong reputation and name recognition could make Fitzgerald an ideal political candidate, but he said on a Chicago radio station last year that he has "no intention of ever running for any office." Other options include going into private practice, seeking a seat on the bench or even heading back to Washington for a job with the Justice Department.

Fitzgerald's name is repeatedly mentioned as a possible replacement for FBI Director Robert Mueller, who is scheduled to step down next year.

"I think he'd be a great FBI director," said former U.S. Attorney Scott Lassar. "I think he would enjoy the job. I think the agents would trust him."

For now, it appears that Fitzgerald is staying put.

"I think anybody would say he's doing a spectacular job leading that office, and it's a spectacular office to lead," said Ron Safer, also a former federal prosecutor. "Why would anybody leave that job before it's necessary?"

[Associated Press; By KAREN HAWKINS and MICHAEL TARM]

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