Report on Fitzgerald and A Final Report Is Misleading

TalkLeft's eminently qualified Washington Correspondent reports:

I don't ordinarily criticize newspaper coverage, but today's New York Times story on Patrick Fitzgerald's investigation is not only wrong, but damaging. The thrust of the article is that although "[a] final report had long been considered an option for Mr. Fitzgerald if he decided not to accuse anyone of wrongdoing," Fitzgerald has indicated he is not going to issue a report. According to the Times, this indicates that Fitzgerald is more likely to seek indictments.

This is wrong on so many counts.

First, I don't know who other than reporters had "considered" a final report "an option" - and the use of the passive voice is significant - but such a report would appear to be prohibited by law. Rule 6(e) of the Federal Rules of Criminal Procedure, as you know, prohibits a prosecutor from disclosing grand jury proceedings. If Fitzgerald did issue a report, he would be in contempt of court. Perhaps the Times reporters and others may have been misled by the fact that special prosecutors appointed under the now-expired Independent Counsel Act, such as Lawrence Walsh and Ken Starr, issued final reports. But those reports were specifically authorized by the statute under which they were appointed, and Pat Fitzgerald wasn't appointed under that statute.

Rather than straightforwardly reporting the law, however, the Times makes it seem like Fitzgerald is choosing not to issue a report, and permits them to feed the frenzy of uninformed speculation about what he will do. We're just going to have to wait and see - and we're going to have to accept the possibility that Pat Fitzgerald may conclude that no crime was committed here, or that no prosecution of such crimes is warranted, and we'll never know why. In the long run, our judicial system works better that way. One of the things we learned from our experience under the Independent Counsel Act is that "reports" by prosecutors, representing their one-sided view of their investigative efforts, can be impossible to rebut and can damage individuals' reputations without justification.

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    Re: Report on Fitzgerald and A Final Report Is M (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:09 PM EST
    Question TalkLeft... After reading this article... Chickens Come Home to Roost on Cheney Down at the end, the article makes a reference to Nixon firing Archibald Cox. What happens if Bush does the same to Fitzgerald? Also this article is the first place I've seen mentioning that the administration knew of Wilson's trip to Niger, unlike all of the claims by Cheny that he was unaware, and Wilson claiming the White House was preparing to bury him even before he spoke out.

    Re: Report on Fitzgerald and A Final Report Is M (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:10 PM EST
    The question of whether a federal grand jury can issue a report is not so black and white. The U.S. Attorney Manual says: 9-11.101 Powers and Limitations of Grand Juries -- The Functions of a Grand Jury * * * At common law, a grand jury enjoyed a certain power to issue reports alleging non-criminal misconduct. A special grand jury impaneled under Title 18 U.S.C. 3331 is authorized, on the basis of a criminal investigation (but not otherwise), to fashion a report, potentially for public release, concerning either organized crime conditions in the district or the non-criminal misconduct in office of appointed public officers or employees. This is discussed at USAM 9-11.300and USAM 9-11.330, and the Criminal Resource Manual at 158-59. See Jenkins v. McKeithen, 395 U.S. 411, 430 (1969); Hannah v. Larche, 363 U.S. 420 (1960). Whether a regular grand jury enjoys a comparable authority to issue a report is a difficult and complex question. Cf. United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). The Criminal Division of the Department of Justice should be consulted before any grand jury report is initiated, whether by a regular or special grand jury. See also USAM 9-11.330. I don't know if Fitzgerald's grand jury was empaneled under section 3331. Even if it was not, United States v. Briggs lists a number of cases in which grand juries did issue reports.

    Re: Report on Fitzgerald and A Final Report Is M (none / 0) (#3)
    by Aaron on Sat Dec 17, 2005 at 01:05:13 PM EST
    The issue of a possible report is an interesting one given that it has often been said that the prosecutor runs the grand jury. In the abscence of a runaway jury, how much independence would there be in any report issued by a grand jury that was only allowed to see and hear one side of the argument presented by advocates from the prosecutor's office? Even if the report did not come directly from Fitzgerald, the report would still be his progeny, in one sense, even if he tacitally or directly objected to the grand jury's issuance of this report.