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Question of the day

Friday, Jul 31, 2009

* Ab Mikva is upset with US Attorney Patrick Fitzgerald. You’ll all remember Fitzgerald’s press conference after Blagojevich’s arrest…

“The conduct would make Lincoln roll over in his grave,” Fitzgerald said the day of the Dec. 9 arrest. He also said Blagojevich had gone on “a political corruption crime spree.” And Robert D. Grant, head of the FBI’s Chicago office, told the same news conference that if Illinois “is not the most corrupt state in the United States it’s certainly one hell of a competitor.”

Mikva’s response yesterday…

“I certainly don’t like the prosecutor coming out and trying his case [in the media] and possibly tainting the jury pool with a big press conference announcing he has indicted so-and-so, or, in Blagojevich’s case, has arrested so-and-so — he hadn’t even reached an indictment yet,” Mikva saids at the American Bar Association convention.

“The argument is made by some prosecutors that this is a part of a public information factor of a prosecutor’s job, and they have to do it. That’s nonsense.” […]

“I suppose prosecutors have first amendment rights, but … somehow there’s something wrong and inconsistent with a prosecutor who is supposed to try that case in court and is supposed to be the public persona [of justice] announcing to the world that you’ve got this guy dead-to-rights and he should go to jail for a long time,” Mikva said. […]

Pressed on whether prosecutors such as Fitzgerald should make themselves available to answer questions from the press about newly-released indictments, Mikva conceded sometimes that was helpful and necessary with complicated cases, but he said the prosecutors should keep their answers unemotional.

A federal judge agreed

“I think that the indictment should be the news conference,” said Judge Paul L. Friedman of U.S. District Court in the District of Columbia, suggesting that reporters should get their information about the case from the indictment and prosecutors should not add facts not contained in that document.

* The Question: Did Fitzgerald go too far? And should US Attorney’s, the FBI and others in law enforcement avoid press conferences that stray from the cold facts of an arrest or indictment?

Explain both answers, please. Thanks.

- Posted by Rich Miller        


34 Comments
  1. - Obamarama - Friday, Jul 31, 09 @ 11:31 am:

    Yes Fitz went to far. Unless I missed Lincoln’s involvement in the indictment, that reference had nothing to do with informing the public about the facts at hand. By saying that Blago went on a political corruption crime spree, Fitz was asserting Blago’s guilt–or prosecuting from the podium if you will. If I am a member of the media seeking clarification on a complicated case, sensational rhetoric doesn’t answer my questions but rather taints my objectivity.

    As for avoiding press conferences that stray from the facts, of course they should. But that is in the hands of the person behind the microphone. Leave the subjectivity to the editorial boards, who will ultimately screw up the story, and then we can chastise them on CapFax. Everybody wins.


  2. - George - Friday, Jul 31, 09 @ 11:32 am:

    In a certain sense, Fitzgerald had to make his press conference meet the expectation of severity of arresting a sitting Governor in the wee hours of the morning, leading him on a path to being removed from office.

    I think the question of “too far” goes to whether or not they had the backup evidence at the time that made it an open-and-shut case, or if the real meat of the prosecution in the upcoming trial will come from evidence gleaned after the arrest (flipping harris, monk, kelly, etc.). The danger is that they don’t end up using any of the stuff that Fitzgerald highlighted in the press conference (maybe because they have better stuff), and that gives Blago an opening to say Fitzgerald tainted the jury pool, leaving him grounds for appeal and extension of the nightmare.

    So, we will have to wait and see if he went too far.

    But I think we would have all been shocked if the Press Conference was cold hard facts without some drama. We expected it to meet the moment, in a way.


  3. - George - Friday, Jul 31, 09 @ 11:35 am:

    Then again, “that would make Lincoln roll over in his grave” is a bit too far, regardless of everything I said above.

    That had no relevance to the case, and was an emotional appeal to the public.


  4. - Pot calling kettle - Friday, Jul 31, 09 @ 11:37 am:

    Yes, he went too far. He appeared to be grandstanding. It made him look like he was considering following other well-known prosecutors into elected office.

    There is always a chance that the accused is innocent, our system presumes innocence. People are often overwhelmed by the enormity of the crime and lose sight of the question of guilt. The press conference assumed guilt.

    By having a press conference, the prosecutor (or FBI) runs the risk of that vaulting into hyperbole and damaging the case. A press release listing the facts of the case would probably be the better option in most situations, especially the high profile ones. Once prosecutors and the FBI start fielding questions and answering on the fly, they are likely to say something they shouldn’t.


  5. - wordslinger - Friday, Jul 31, 09 @ 11:38 am:

    Yes, on both counts.

    Both Fitzgerald and Grant larded their statements with zingers that they hoped would lead the TV news. The facts spoke for themselves. The rest was piling on, lacked decorum and was unprofessional.

    (Don’t you hate giving Blago a break?)

    Once the Justice Department picks a target, they can devote unlimited resources to prosecution. That’s awesome power that should be devoted to trying their case in court, not in public opinion.

    Like Joe Friday, just the facts.


  6. - fed up - Friday, Jul 31, 09 @ 11:47 am:

    I too agree he went to far. I think Fitzgerald and Grant are frustrated with the size and scope of corruption in Illinois. They know they can only investigate a small percentage of the crimes being committed and may have been hoping to wake up the masses to start holding the states elected officals responsible for the sleazy state of affairs in this state.


  7. - Doug Dobmeyer - Friday, Jul 31, 09 @ 11:48 am:

    Fitzgerald embelished what was already a sensational case. If he had done any less, people might have thought him somewhat “dead to the world.”

    The issue remains could Blago or any governor arrested in the early morning hours, taken away in handcuffs would not taint the jury pool. Perhaps the mannerisms of the cops contributed more to the tainting then the US Atty.

    Doug Dobmeyer


  8. - downstate dem - Friday, Jul 31, 09 @ 11:53 am:

    It was such an emotional story, securing cause for the
    arrest of a sitting governor that I think everyone got caught
    up in the show.

    The governors antics almost begged for this type of story
    to come out when he was arrested.

    Was it right to make the allegations? No . . . and not very professional, but if I were in Fitz’s shoes I’m not sure I could have avoided the comments either.


  9. - jake - Friday, Jul 31, 09 @ 12:11 pm:

    I agree that he went too far, by all normal standards of prosecutorial behavior. The possible justification is that he was attempting to abort a crime in progress; i.e., the selling of the Senate seat. In order to prevent the continuation of a crime in progress, measures are sometimes justified that would otherwise not be.


  10. - lifer - Friday, Jul 31, 09 @ 12:43 pm:

    I think Fitz didn’t go too far. He tried to stop the selling of a senate seat (even arresting a governor didn’t appear to work in that regard he still appointed the Obama successor).

    FBI and prosecutors should only state the facts but then if they didn’t grand stand a bit would the press follow it?


  11. - Anon - Friday, Jul 31, 09 @ 12:44 pm:

    Yes and yes. It isnt mr. Fitzgerald’s job to editorialize on his department’s activities. he should report only the facts. I dont think one could argue that his comments didnt taint the opinion of every potential juror. If I were Blagojevich’s legal team, considering the various opinions out there from respected legal minds, I would seek to get the case thrown out.

    From the day he was arrested (being led out of his hime in handcuffs as a sitting governor is also a questionable tactic from a department of justice), he has been tarred and feathered in the court of public opinion. I believe that Mr. Fitzgerald lit that fire, and, as a result, Mr. Blagojevich will never receive a fair trial.


  12. - Will County Woman - Friday, Jul 31, 09 @ 12:48 pm:

    yes, fitzgerald went too far in his comments. and, when blago’s lawyers rightly asked that fitzgerald be removed the judge should have ganted the motion.

    by not doing so, the blago legal team has a good issue for an appeal—especially now with other federal judges weighing in on this issue.


  13. - Will County Woman - Friday, Jul 31, 09 @ 12:56 pm:

    and…yes federal prosecutors and law enforcement should stop with the law and order tv show theatrics, that they always claim only happens on tv and that no real self-respecting prosecutor would do. ;-)


  14. - jake - Friday, Jul 31, 09 @ 1:01 pm:

    I think there will not be problems with having a trial, since many of the items in the indictment were not dealt with in the news conference in question, which was at the time of the arrest. A very good consequence of the prosecutor’s behavior is that it gave the legislature enough backbone for impeachment and removal from office, which in my opinion was long overdue. It is true that the Mr. Blagojevich has subsequent to the arrest been all but convicted in the court of public opinion, but very little of that has been due to the prosecutor. A lot of it has been due to Mr. Blagojevich’s own behavior and the rest has been due to the irresistible nature of the story for both serious and satirical media.


  15. - Fed up - Friday, Jul 31, 09 @ 1:06 pm:

    Or is Mikva deflecting attention away from his unwillingness to press for Madigan to explain himself with regard to U of I clout list favors to constituents. Could any of those ‘favors’ have gone to donors by chance?


  16. - steve schnorf - Friday, Jul 31, 09 @ 1:21 pm:

    Of course he went too far: that has been his style pretty consistently the past few years, hasn’t it (Scooter Libby?).

    The idea that he had to because he was trying to stop a crime in progress is ridiculous: the arrest did that.

    T lest it wasn’t the OJ trial, but Mr Fitzgerald is following in the footsteps of the talking heads with 24 hours of air to fill, and that should be beneath him.


  17. - mac - Friday, Jul 31, 09 @ 1:34 pm:

    Yes he “misspoke”,as our President would explain it-but the commentary by these judges further these “mispoken” remarks.Would seem more prudent to have these judges air their complaints directly to Fitz or file a formal protest rather than help his remarks remain in the public eye by their publicizing their concerns at this date


  18. - heet101 - Friday, Jul 31, 09 @ 1:45 pm:

    Yes to both. Fitzgerald was grandstanding and came across as holier than thou and indignant. It reminded me of when you get pulled over by a cop and he tries to give you a moral lecture rather than just writing you the freakin’ speeding ticket and getting the business done. These prosecuting agents should absolutely avoid all the public pontification. The overall public impression of law enforcement officials would change for the better if there was a little less God-like vitriol and a little more sticking to the cold hard facts.


  19. - chuddery - Friday, Jul 31, 09 @ 1:46 pm:

    I don’t have any particular judgment regarding Fitzgerald’s conduct, but I don’t recall anyone here mentioning this when the indictments were handed down.

    It’s possible I missed some hand-wringing over Fitzgerald’s press conference while I was breathing a sigh of relief that Blago was stopped from selling a Senate seat, but 8 months after the fact the criticism seems a little excessive.


  20. - Rich Miller - Friday, Jul 31, 09 @ 1:51 pm:

    ===but I don’t recall anyone here mentioning this when the indictments were handed down.===

    I posted about a couple of things back then, actually.


  21. - sal-says - Friday, Jul 31, 09 @ 1:56 pm:

    Not to speak for Fitzgerald, but I suspect his words came from his apparent (and visible) anger at the egregiousness of goofy’s actions; wanting to seel the senate seat. Did he go ‘too far’? Did Blago?

    I suspect that some would argue what the ‘facts’ are in any statement law enforcement makes.

    Mikva? He’s the guy who ‘doesn’t want to micromanage’ the U of IL regarding whether or not the university’s leadership, who were involved in this sordid episode, should resign like he says the trustees should. But it’s apparently OK to criticize Fitz months after the fact? Hello?


  22. - Rich Miller - Friday, Jul 31, 09 @ 1:58 pm:

    ===But it’s apparently OK to criticize Fitz months after the fact? Hello? ===

    Let’s stick to the question, please. The subject came up at a panel discussion. It’s not like he just came out and held a press conference or something.

    Back to the question. Final warning.


  23. - Will County Woman - Friday, Jul 31, 09 @ 1:59 pm:

    @ chuddery
    national news media and pundits did weigh-in on this issue when it occured, and most, if not all, correctly concluded that Fitzgerald (and Grant) got a little too cute and gone too far.

    @ Mac
    the federal judges who have voiced their concern with fitzgerald, as I recall it, did so during a recent speaking enagement, in which they were first asked for their opinions. That they had not voiced any unsolicited opinions prior to the other day suggest that they were content to keep their opinions to themselves. Just because they dare to disagree with the Fabulous Mr. Fitzgerald, doesn’t mean you have knock ‘em by questioning their sincerity, does it?


  24. - slinger - Friday, Jul 31, 09 @ 2:01 pm:

    Didn’t Mikva get a big board appointment from Blagojevich that paid a decent amount of change? Just asking. I’m sure he shouldn’t have disclosed that to the ABA.


  25. - Jake from Elwood - Friday, Jul 31, 09 @ 2:02 pm:

    Mikva is wrong, Prof. Friedman is wrong and P.Fitz was wrong.
    Of course prosecutors should be allowed to have news conferences. The defense certainly gets the same right. They need not be limited to a factual recitation. P.Fitz overdid it with his hyperbole, but recognize that this was a unique factual setting.
    In sum, it should be permitted if not welcomed but a little more discretion is in order.


  26. - Ghost - Friday, Jul 31, 09 @ 2:08 pm:

    === Did Fitzgerald go too far? ===

    No, in fact he seemed to be acting in the same manner as Mikva.

    lets recall that Mikva is in the course of an investigation which has produced no final report wrapping up. I would consider that the equiaalant of the fed indcitment.

    However Mikva, while he is still investigating, stated to the press:
    === the University of Illinois trustees should all should submit their resignations. ===

    Apparently Mikva thinks conduct codes are for everyone else.

    === should US Attorney’s, the FBI and others in law enforcement avoid press conferences that stray from the cold facts of an arrest or indictment? ===

    Yes, but then again so should defense attorneys and defendants. It a defendant or his attorney may talk in a amnner that might taint the jury, why would we cripple the prosecutor? its either ok for all or ok for none.


  27. - Amy - Friday, Jul 31, 09 @ 2:20 pm:

    Yes the Northern District Attorney went too far with that news conference. it’s odd, but quite often he just does not know when to shut up. look his testimony in the Ambrose matter,
    the fed guy who blabbed to the mob, horrible, and not just for someone who is supposedly so smart. even someone who is
    not a lawyer could read that he said too much. (don’t care that
    the Feds won, Fitz talk in the witness box exposed him.)

    I do agree that he could have conducted that press conference and gone beyond just the simple facts, after all, he was stopping a crime in progress. but it’s how he did it, overacting, grandstanding.

    U.S. Attny Fitzgerald does not seem to be functioning in the same way, he’s not as good as he once was. Is he getting tired of the job? does he need a vacation? is he getting Obama syndrome? (need of a vacation, has to stay on prompter). what
    is changing him, making him not as good at his job?


  28. - Responsa - Friday, Jul 31, 09 @ 2:29 pm:

    I thought at the time that Fitz was being uncharacteristically dramatic in the news conference. But I think many of us also realized almost immediately that preventing the outright sale of a US Senate seat, (which would have happened had Fitz not turned the spotlight on right then and stopped it) was very important. The feds ultimately having to conduct the prosecution of a sitting governor AND a sitting(appointed) senator would have been really interesting and newsy, but horrible for our state and nation. Fitz is a hero on this one.


  29. - Cook County Moderate - Friday, Jul 31, 09 @ 2:31 pm:

    Yes he went to far, and it has become the status quo for him. He continually tries cases through the media, namely Chicago media who continues to paint him as a knight on a white horse that has come to save the public from rampant corruption. The true facts are known by him (his crew of attys.)and Blago. It is not his job to hand feed the public and the media what he deems as relevant information. His job is to try a case to a judge and a jury not to the numerous media outlets. They should have no bearing on the outcome. Any other atty. would be sanctioned severely for making these type of comments to the media, play fair and stop the double standards.


  30. - wordslinger - Friday, Jul 31, 09 @ 3:23 pm:

    –I don’t have any particular judgment regarding Fitzgerald’s conduct, but I don’t recall anyone here mentioning this when the indictments were handed down.–

    The indictments came months later, of course. There was a lot of discussion here in the days following the arrest as to whether Fitz and Grant went too far with their remarks.

    A lot.


  31. - lake county democrat - Friday, Jul 31, 09 @ 3:30 pm:

    Yes (but understandably and he didn’t go *that* far given the facts of the indictment almost speak hyperbole themselves) and Yes — the media will take care of that, thank you.


  32. - winco - Friday, Jul 31, 09 @ 3:52 pm:

    Did he go too far? The answer can be found in the the Illinois Rules of Professional Conduct. While they are purposefully vague, because they were written by lawyers to apply to lawyers. But it is pretty clear he went too far. Rules 3.6 and 3.8 let prosecutors disclose the facts of an indictment or charge, but not the hyperbolic statements he made, and they are not even allowed to say “I think he’s guilty.”
    http://www.state.il.us/court/SupremeCourt/Rules/Art_VIII/default.asp
    Defense lawyers are similarly restricted, but all lawyers can make public statements if they believe they need to respond to the other side’s public statements or even just the facts out in the media from other sources.


  33. - chuddery - Friday, Jul 31, 09 @ 4:39 pm:

    Well I’m thoroughly chastened, and will stick to the QOTD rather than question it.


  34. - David - Friday, Jul 31, 09 @ 8:15 pm:

    He went too far. Even though it may prove to be true in the end, even a dope like Rod deserves his day in court before being declared guilty by anyone. There is only one thing we know for sure about Rod - He’s guilty!


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