18 Corporate Crime Reporter 1(1), January 5, 2004

WHY DID COMEY APPOINT FITZGERALD TO INVESTIGATE CIA LEAKS? THEY ARE BEST FRIENDS AND THERE IS TRUST

Last week, Deputy Attorney General James Comey appointed Chicago-based U.S. Attorney Patrick Fitzgerald to investigate who leaked the name of undercover CIA operative Valerie Plame to reporter Bob Novak. Attorney General John Ashcroft then recused himself from the case.

Why Fitzgerald?

Well, first of all, Comey needed someone he could trust, so he turned to one of his best friends in the U.S. Attorney corps.

"They have taken one of the most experienced and independent U.S. Attorneys in the country," said Lawrence Barcella, a partner at Paul Hastings in Washington, D.C."And they made Pat Fitzgerald the special counsel for this case. Pat Fitzgerald and Jim Comey are old long-time dear friends. They served in the U.S. Attorneys office in the southern district of New York. They tried some terrorism cases together. And that could cut both ways. It probably does mean that Jim Comey has complete utter confidence and trust in Fitzgerald. And when he says -- you handle it, and you just come to me when you need resources -- I'm sure that is exactly what he does mean."

Fitzgerald is in the middle of a high profile corruption prosecution of former Illinois Governor George Ryan.

Even Ryan's defense attorney, Dan Webb, thinks picking Fitzgerald for the CIA leaks investigation was the right move.

"This is perfect for him," Webb told us last week. "He's an outstanding prosecutor. He will clearly get to the bottom of the issues in this case. People will have confidence in the results."

Up until last week, the Justice Department was saying there was no need for a special counsel -- that the professional prosecutors were very capable of handling the case.

Then why appoint a special counsel now?

"It's just that we reached a point in the investigation where the attorney general and I thought it was appropriate to make the judgment that's been made," Comey said at a press conference at the Justice Department last week.

But what tipped the balance?

"Well, I can't tell you that and the reason for that is obvious," Comey said, with an obviously uncomfortable Assistant Attorney General Christopher Wray standing to his side. "I can't tell you about the details of any criminal investigation because our goal is to make sure that anyone we're pursuing doesn't know what we're doing and also anyone who might not be charged with a crime is not unfairly smeared."

Barcella says that speculation can go either way.

"You can say that in recent days they may have uncovered some information in the investigation which indicates that there may be some people in the White House that are going to be either called before the grand jury, or that are going to be publicly identified as potential targets of an investigation," Barcella said. "That would certainly ratchet up the appearance of conflict issue that the Democrats on the Hill have been hammering. On the other hand, I could also argue that over the past couple of weeks, maybe it has become obvious that it doesn't look like there is going to be any resolution to the leaks investigation, and they want to have optics coverage that way. They want to make sure that if that is the announcement that is going to be made, it is going to be made by someone who is far more independent than John Ashcroft." (See Interview, page 10)

At the press conference, we asked Comey if he could fire his buddy Fitzgerald if Comey didn't like the job he was doing.

"Well, in theory, if I know what he's doing, in theory, I could. Yes. And I better have a darn good reason for doing it, because you'd have your hands in the air," Comey said.

The Saturday Night Massacre scenario still haunts these types of independent investigations. It was the 1973 firing of Watergate Special Prosecutor Archibald Cox by the Nixon White House that lead Congress to pass the independent counsel statute.