U.S. Attorney Patrick Fitzgerald thought he was testifying yesterday on the Department of Justice’s special counsel regulations.
After waiting for more than an hour while members of the House Subcommittee on Commercial and Administrative Law broke for a vote, he took his chair, the only witness on the second panel. (The witnesses on the first panel, a group of prominent attorneys and law professors in their own right, expressed wonder at having taken the stage before him.)
Rep. Linda Sanchez (D-Calif.), the subcommittee chairwoman, began with something to this effect: Do you believe the President should commute the sentence of someone prosecuted by the Justice Department and convicted of lying?
Fitzgerald, who replied, rather archly, that he wasn’t expecting that line of inquiry, said that, yes, he recognized the president's power to commute sentences.
When Sanchez asked him next whether the administration had consulted with him before President Bush commuted I. Lewis “Scooter” Libby’s 30-month sentence, Fitzgerald said, “I know I was notified I wasn’t consulted.”
From there, the questions hit a bit closer to the mark. Sanchez wanted to know whether Fitzgerald thought special counsel should be given the freedom to expand their jurisdiction without consulting Main Justice.
“I was not given the authority to expand the subject matter” of the Libby investigation, Fitzgerald shot back. “I could go wherever the facts took me, but I could not extend my mandate beyond that.”
In point of fact, Fitzgerald has never been a “special counsel” as envisioned in the regulations. In the leak investigation, Fitzgerald was appointed from within the department, rather than outside. While he could convene a grand jury or bring an indictment, he was still bound to the institution by virtue of his full-time position as the U.S. Attorney in Chicago.
Same goes for John Durham, the prosecutor from Connecticut tasked with investigating the destruction of the CIA interrogation tapes. But as the acting U.S. Attorney for the Eastern District of Virginia, he is accountable to Craig Morford, the acting deputy attorney general, and ultimately, the attorney general, whereas Fitzgerald was not.
The House and Senate judiciary committees, in particular, and Democrats, generally, have called for an outside counsel to handle the investigation, on the assumption that it’s imprudent for the department to investigate itself.
Fitzgerald deflected questions of whether he thought it was appropriate for Durham to decline to investigate the underlying conduct the CIA’s use of simulated drowning featured in the tapes. “I really don’t feel comfortable opining about what someone should do who is not under my authority,” he said.
The full committee chairman, John Conyers (D-Mich.), asked about the costs of such investigations. Fitzgerald said the nearly three-year leak investigation and trial of Scooter Libby rang up at about $2.4 million, a bargain by anyone’s accounting.
In truth, the government only spent about $550,000, and most of that on travel and transcripts. The government salaries of the investigators and lawyers on the team are factored into the $2.4 million, but they received no payment besides.
Conyers finished up by asking Fitzgerald if he knew who leaked the name of then CIA officer Valerie Plame. Three different officials spoke with reporters, Fitzgerald replied.
“Those names were widely published.”