Bench Memos

More Hysteria

This front-page article in today’s Washington Post, titled “Fitzgerald Ranked During Leak Case”, is yet another example of hyperventilating reporting on the dismissal of U.S. attorneys.  The casual reader is led to believe, on the basis of zero affirmative evidence and lots of contrary evidence, the cockamamie notion that the dismissal plan might have been devised as a smokescreen for the dismissal of Fitzgerald.


Consider the facts:


1.  The reporters who wrote the story have known since a week ago—when the first batch of internal Administration documents was made available on the House Judiciary Committee’s website—that the Justice Department sent the White House a chart in March 2005 ranking all U.S. attorneys in one of three categories:  (a) “Recommend retaining; strong U.S. Attorneys who have produced, managed well, and exhibited loyalty to the President and Attorney General”; (b) “Recommend removing; weak U.S. Attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.”; and (c) “No recommendation; have not distinguished themselves either positively or negatively”.  Thus, the fact touted in the headline—that Patrick J. Fitzgerald, the U.S. attorney from Chicago who doubled as the special counsel investigating the CIA leak investigation, was included in the chart—is hardly news.


2.  The first sentence of the article breathlessly relates that the chart listed Fitzgerald among those prosecutors who had “not distinguished themselves”.  Somehow the reader isn’t informed until the 19th and 20th paragraphs—well below the fold on the continuation page of the story—that that ranking meant that the Justice Department was not recommending Fitzgerald’s removal (or not “at the time”, as the article tendentiously states the point). 


3.  The article defends its insinuation that Fitzgerald might have been targeted for removal by noting that two other U.S. attorneys who had received the same ranking as Fitzgerald at the time ended up being removed.  But by that logic the reporters would have found it equally incriminating if Fitzgerald had received the highest rating of “Recommend retaining”, as two U.S. attorneys who received that rating at the time ended up being removed.


4.  The reader is led to believe that the “No recommendation” ranking for Fitzgerald is implausible.  In particular, the reporters quote former prosecutor Mary Jo White as stating that Fitzgerald is “probably the best prosecutor in the nation” and that his middling ranking “lacks total credibility,” “casts doubt on the whole process,” and is “kind of the icing on the cake.”  By all accounts, Fitzgerald is a remarkably talented prosecutor.  But what the reporters and White seem not to understand is that the ranking does not purport to be merely of prosecutorial skills.  It also includes an assessment of the U.S. attorney’s fidelity to Administration enforcement initiatives.  There is no reason to think that White is in any position to judge how Fitzgerald performed on that score.


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