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NYT: Did special counsel Fitzgerald properly exercise his 'prosecutorial discretion' in CIA leak investigation?

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Published: Friday September 1, 2006

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An article on the front page of Saturday's edition of The New York Times examines if special counsel Patrick J. Fitzgerald properly exercised his 'prosecutorial discretion' in his CIA leak investigation.

"An enduring mystery of the C.I.A. leak case has been solved in recent days, but with a new twist: Patrick J. Fitzgerald, the prosecutor, knew the identity of the leaker from his very first day in the special counsel’s chair, but kept the inquiry open for nearly two more years before indicting I. Lewis Libby Jr., Vice President Dick Cheney’s former chief of staff, on obstruction charges," writes David Johnston for the Times.

"Now, the question of whether Mr. Fitzgerald properly exercised his prosecutorial discretion in continuing to pursue possible wrongdoing in the case has become the subject of rich debate on editorial pages and in legal and political circles," the article continues.

Excerpts from the Times article:

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Mr. Fitzgerald’s decision to prolong the inquiry once he took over as special prosecutor in December 2003 had significant political and legal consequences. The inquiry seriously embarrassed and distracted the Bush White House for nearly two years and resulted in five felony charges against Mr. Libby, even as Mr. Fitzgerald decided not to charge Mr. Armitage or anyone else with crimes related to the leak itself.

Moreover, Mr. Fitzgerald’s effort to find out who besides Mr. Armitage had spoken to reporters provoked a fierce battle over whether reporters could withhold the identities of their sources from prosecutors and resulted in one reporter, Judith Miller, then of The New York Times, spending 85 days in jail before agreeing to testify to a grand jury.

Since the disclosures about Mr. Armitage’s role, Bush administration officials have argued that because the original leak came from a State Department official, it was clear there had been no concerted White House effort to disclose Ms. Wilson’s identity.

But Mr. Fitzgerald’s defenders point out that the revelation about Mr. Armitage’s role did not rule out a White House effort because other officials like Mr. Libby and Karl Rove, the senior white House adviser, had spoken about Ms. Wilson with other journalists.

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FULL TIMES ARTICLE CAN BE READ AT THIS LINK