Prosecutors Gone Wild: Lessons From the Blagojevich Case

From the very beginning I argued that the public should reserve judgment about Rod Blagojevich. The Chicago Tribune had the openness to run two of my op-eds recommending suspension of judgment–“Fitzgerald comments crossed ethical line” (Jan. 15, 2009) and “Reign of everyday hypocrisy” (April 10, 2009).

U. S. Atty Patrick Fitzgerald’s inflammatory comments at his Dec. 9, 2008, news conference–where he stated that Blagojevich’s conduct was “appalling” and that he had gone on a “political crime spree”–were entirely out of bounds. Finding Blagojevich guilty on only one of 24 counts is some “crime spree.” Maybe Fitzgerald confused Mr. and Mrs. Blagojevich with Bonnie and Clyde.

Worse, Fitzgerald poisoned the well of public opinion, leading to a zeitgeist of public frenzy–what the 19^th Century Scottish essayists called “schwarmerei,” a swarming herd conformity throughout the country and an animating spirit that precludes reserving judgment.

At the time, I received the following letter on Jan. 22, 2009, from Edward Genson, who had been Blagojevich’s initial counsel:

“I would like to commend you for your opinion piece in the Chicago Tribune on January 15^th and thank you for highlighting Patrick Fitzgerald’s ethical misstep. Even in the face of this schwarmerei against Blagojevich, Fitzgerald still has to produce enough evidence to indict–imagine the schwarmerei against Fitzgerald if he fails!”

Fitzgerald had gotten away with it with Scooter Libby, whom he knew committed no crime but who perjured himself in subsequent testimony. And the Conrad Black case does not reflect well on Fitzgerald.

There are two powerful lessons from the Blagojevich case:

One, prosecutors can be wrong, can abuse their power. It is big government at the prosecutorial level. Seven decades ago U. S. Attorney General Robert Jackson observed: “The prosecutor has more control over life, liberty, and reputation than any other person in America. . . . While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” Jackson also admonished U. S. Attorneys to be dedicated “to the spirit of fair play and decency. . . . A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power.”

Two, public majorities can be wrong within what John Stuart Mill called the “tyranny of prevailing opinion.” History, he reveals, “teems” with examples of where majorities were later proven wrong. Perhaps the best known example is public concurrence with the incarceration of Japanese-Americans during World War ll.

Rod Blagojevich, though a bizarre fellow, has an endearing sense of self-deprecating humor, but he was the typical scheming politician, among whom quid pro quo is business as usual. There is some truth in Mark Twain’s related observation that “there is no distinctly American criminal class except Congress.”

Fitzgerald has all the money, all the time, all the power in the world to go after Blagojevich. He has, after all, a reputation to defend.