On December 9, 2008, U.S. Attorney Patrick Fitzgerald held an emergency press conference to announce a criminal complaint against then Illinois Governor Rod Blagojevich. While there were many accusations, the most prominent and inflammatory was that Blagojevich attempted to sell Barack Obama’s vacant Senate seat in exchange for campaign contributions.

Fitzgerald stated that he simply couldn’t wait to complete his investigation because of the threat that someone might get appointed to the Senate in a tainted process. Several months later, in April 2009, Blagojevich was indicted on RICO and other charges.

In the intervening months between the press conference and the indictment, Illinois and the nation went through an intense legal and legislative process attempting to deal with the revelations. Illinois Attorney General Lisa Madigan unsuccessfully attempted to have the Illinois Supreme Court remove Blagojevich. Among Madigan’s allegations was a possible bond funding crisis caused by the Fitzgerald press conference, which if true may have led to the fiscal collapse of Illinois state government. Had Madigan succeeded, there would have been long-term negative consequences to this precedent of judicial interference in the political process.

Just weeks later, Blagojevich appointed Roland Burris to the vacant seat, setting off more Illinois Supreme Court litigation when the Illinois Secretary of State refused to sign the certificate of appointment. The Illinois Supreme Court ruled that such a certification was unnecessary and that Burris was the lawful appointee.

More important, the refusal to sign the certificate of appointment almost caused a federal constitutional crisis when Harry Reid initially indicated that he would not seat Burris without the certificate, leading many to question whether Reid had such power. Reid eventually relented when Burris submitted alternative documentation (the exact nature of which never has been revealed). All the while, a central argument made by me and others was that the Burris appointment was valid, among other reasons, because there had been no suggestion that Burris in any way, shape, or form was involved in the alleged scheme to sell Obama’s Senate Seat.

The Illinois House then impeached Blagojevich, and the Illinois Senate convicted him at a trial. During the impeachment hearings, Burris denied offering anything to Blagojevich in exchange for the appointment. Patrick Fitzgerald released four heavily redacted transcripts of wiretapped conversations, none of which involved Burris, but refused requests for greater disclosure of wiretaps, calling into question the fairness of the impeachment case.

Throughout these legal, legislative, political, and constitutional trials and tribulations, Patrick Fitzgerald was silent as to Roland Burris. Not a hint that Burris may have been involved in offering money for the appointment. Given Fitzgerald’s statement in December 2008 that the U.S. Attorney’s office was disclosing Blagojevich’s alleged conduct out of a desire to avoid a tainted senatorial appointment, Fitzgerald’s silence was taken as vindication for Burris.

Yet Fitzgerald knew better. It has been revealed that Fitzgerald had tapes, just disclosed, showing Burris talking with Blagojevich’s brother about the possibility of campaign contributions as part of the appointment process. It is not clear that Burris committed a crime in those conversations, although Burris’ Illinois Senate testimony will be scrutinized for possible perjury. But that is besides the point now.

How could Fitzgerald, having called a press conference to stop a tainted appointment, sit idly by while Burris was appointed and seated in the Senate without disclosing the tapes of Burris talking about contributing to Blagojevich’s campaign? While the nation went through a legal crisis, sparked by Fitzgerald’s own press conference, Fitzgerald watched it all in silence.

This is reminiscent of Fitzgerald’s conduct in the Lewis “Scooter” Libby case, involving the leak of CIA employee Valerie Plame’s name. Fitzgerald knew from the start of the investigation that Libby was not the person who leaked the name; Fitzgerald already knew who did. Yet Fitzgerald went through an elaborate investigation including taking testimony under oath, under the pretense of uncovering what Fitzgerald already knew. Libby eventually was convicted of perjury for lying to Fitzgerald about the leak during the investigation.

Patrick Fitzgerald has done the nation a favor by vigorously pursuing corruption in the Governor’s office in Illinois. Fitzgerald did no one a favor, however, by selectively leaking some allegations and tapes while holding back on other tapes involving now Senator Roland Burris.

Maybe, as with Libby, Fitzgerald was setting a perjury trap for Burris knowing that Burris would testify under oath in the impeachment hearings. But Burris, unlike Libby, was on the verge of appointment to the Senate, so the stakes went far beyond Roland Burris. Fitzgerald’s leaking of some allegations and tapes regarding Blagojevich while holding back on the Burris’ tapes, for whatever purpose, affected the nation in profound ways far beyond the case at hand.

Once again, Fitzgerald allowed the nation to twist in a wind Fitzgerald created.

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