Friday, December 12, 2008

Obama, Fitzgerald Headed for Clash?

Seems to me that President-Elect Obama and U.S. Attorney Patrick Fitzgerald are headed for a clash over the immediacy of the public's right to know.

Obama vowed Thursday to make public "over the next few days" some sort of catalog of contacts between his campaign aides and Illinois Governor Rod Blagojevich, who was charged Tuesday with trying to auction the senate seat Obama vacated.

But Fitzgerald's M.O. has been to urge witnesses in his investigations to keep quiet about their testimony. "I would prefer for the integrity of the investigation it not be discussed," he told a news conference announcing the indictment in the unrelated Libby case back in 2005. In response to a question from yours truly, the prosecutor said he wasn't sure whether he would ask witnesses to keep quiet publicly after an indictment was returned.

There are already indications that Fitzgerald is asking witnesses in the Blagojevich case to keep mum. CNN reported Thursday night that the network's request for an interview with the Service Employees International Union, which is mentioned in wiretaps related to the case, was rejected. According to CNN, the union said it was withholding comment at the request of the U.S. Attorney's office.

So will Obama snub Fitzgerald by putting out details of his camp's contacts with the disgraced governor? We in the press tend to favor disclosure (though the Chicago Tribune compromised on that already here). The major papers are giving big play to Obama's vow to lay this all out in short order. Obama also claims to be a proponent of transparency. Still, I wouldn't be surprised if he reverses course and decides discretion is a better option right now.

After all, the Bush White House used Fitzgerald's request for silence to justify years of silence about the Libby case.

To be fair to Fitzgerald, he did make clear back in his 2005 Libby presser that grand jury witnesses have the right to disclose their own testimony. The prosecutor just said he urged them not to, which he seems to be doing again in the present case.

Rant: I'm somewhat skeptical about prosecutors' requests for public silence in these circumstances, particularly with preliminary charges already filed. The governor and his top aide have the right to investigate the prosecutors' claims and to talk with any witnesses who are willing to talk. I feel a prosecutor's request to a witness to keep quiet publicly could easily be taken as a request or suggestion not to talk to the defense, which is improper and has led to cases being dismissed. (See, e.g., here). That's the concern I was getting at in my questions to Fitzgerald back in '05.