Now, the question of whether Mr. Fitzgerald properly exercised his prosecutorial discretion in continuing to pursue possible wrongdoing in the case has become the subject of rich debate on editorial pages and in legal and political circles....Why did Fitzgerald do it? "The inquiry seriously embarrassed and distracted the Bush White House...." That looks rather glaring.
Mr. Fitzgerald’s decision to prolong the inquiry once he took over as special prosecutor in December 2003 had significant political and legal consequences. The inquiry seriously embarrassed and distracted the Bush White House for nearly two years and resulted in five felony charges against Mr. Libby, even as Mr. Fitzgerald decided not to charge Mr. Armitage or anyone else with crimes related to the leak itself.
Moreover, Mr. Fitzgerald’s effort to find out who besides Mr. Armitage had spoken to reporters provoked a fierce battle over whether reporters could withhold the identities of their sources from prosecutors and resulted in one reporter, Judith Miller, then of The New York Times, spending 85 days in jail before agreeing to testify to a grand jury.
Since this week’s disclosures about Mr. Armitage’s role, Bush administration officials have argued that because the original leak came from a State Department official, it was clear there had been no concerted White House effort to disclose Ms. Wilson’s identity.
Mr. Fitzgerald, who has spoken infrequently in public, came close to providing a defense for his actions at a news conference in October 2005, when Mr. Libby was indicted. Mr. Fitzgerald said that apart from the issue of whether any crime had been committed, the justice system depended on the ability of prosecutors to obtain truthful information from witnesses during any investigation.Do you want to unleash the prosecutors of the world to follow that theory, that they ought to go ahead and investigate what they know is not a crime, because by exercising your prosecutorial powers you might cause someone to commit a crime? But Fitzgerald did not defend that theory. He only tried to justify indicting someone for perjury when he had no one to indict for the crime he was investigating. These are two different things!