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Justice Dept. memo gave middling mark to Fitzgerald

Attorneys' firings followed rankings

Alberto R. Gonzales faces scrutiny in Congress. Alberto R. Gonzales faces scrutiny in Congress.

WASHINGTON -- US Attorney Patrick J. Fitzgerald was ranked among prosecutors who had "not distinguished themselves" on a Justice Department chart sent to the White House in March 2005, when he was in the midst of leading a CIA leak investigation that resulted in the perjury conviction of a vice presidential aide, administration officials said yesterday.

The ranking placed Fitzgerald below "strong US Attorneys . . . who exhibited loyalty" to the administration but above "weak US Attorneys who . . . chafed against Administration initiatives, etc.," according to Justice documents.

The chart was the first step in an effort to identify US attorneys who should be removed.

The chart was drawn up by D. Kyle Sampson, then an aide to Attorney General Alberto R. Gonzales, and was sent to then-White House counsel Harriet Miers. The reference to Fitzgerald is in a portion of the memo that Justice has refused to turn over to Congress, officials told The Washington Post, speaking on the condition of anonymity because the Fitzgerald ranking has not been made public.

At the time, Fitzgerald was leading the independent probe into the leak of the identity of a CIA operative, which led this month to the perjury conviction of vice presidential aide I. Lewis "Scooter" Libby. Fitzgerald, the US attorney in Chicago, also had recently brought a corruption indictment in Illinois against former Republican Governor George H. Ryan.

Fitzgerald's ranking adds another dimension to the prosecutor firings, which began as a White House proposal to remove all 93 US attorneys after the 2004 elections and evolved into the coordinated dismissal of eight last year. The firings have caused an uproar amid allegations of improper political interference and have led several lawmakers in both parties to call on Gonzales to resign.

The Justice Department last night turned over hundreds of pages of documents about the firings to the House and Senate Judiciary committees. Earlier yesterday, the Senate had begun debating whether to remove Gonzales's authority to unilaterally name federal attorneys without congressional oversight. That ability had been allowed under a little- noticed provision in the Patriot Act.

A Justice Department official yesterday sought to play down the importance of the Fitzgerald ranking, saying the chart was "put together by Sampson and is not an official department position on these US attorneys."

Sampson resigned as Gonzales's chief of staff last week, and his attorney declined to comment yesterday.

Mary Jo White, who supervised Fitzgerald when she served as the US attorney in Manhattan and who has criticized the firings, said ranking Fitzgerald as a middling prosecutor "lacks total credibility across the board."

"He is probably the best prosecutor in the nation, certainly one of them," said White, who worked in the Clinton and Bush administrations. "It casts total doubt on the whole process. It's kind of the icing on the cake."

Fitzgerald has been widely recognized for his pursuit of criminal cases against Al Qaeda's terrorist network before the Sept. 11, 2001, attacks, and he drew up the official US indictment against Osama bin Laden. He was named as special counsel in the CIA leak case in December 2003 by then-Attorney General John D. Ashcroft, who had recused himself.

Fitzgerald also won the "Attorney General's Award for Distinguished Service" in 2002.

Justice spokeswoman Tasia Scolinos said yesterday that "Pat Fitzgerald has a distinguished record as one of the most experienced and well-respected prosecutors at the Justice Department. His track record speaks for itself."

But Fitzgerald also came under sharp criticism from many Republicans and press advocates for his aggressive pursuit of the Libby case, which centered on efforts by the White House and Vice President Dick Cheney to combat criticism of the Iraq war and featured trial testimony from reluctant journalists.

The March 2, 2005, memo from Sampson came in response to a proposal floated by Miers to remove all US attorneys during President Bush's second term. Fitzgerald was placed in a middle category among his peers: "No recommendation; have not distinguished themselves either positively or negatively."

Although the ranking meant that Sampson was not recommending those prosecutors for removal at the time, two US attorneys who received the same ranking were fired last Dec. 7: Daniel G. Bogden of Nevada and Paul K. Charlton of Arizona.

Two prosecutors who were listed in the top category on Sampson's chart were also fired: David C. Iglesias in New Mexico and Kevin V. Ryan in San Francisco.

Gonzales has acknowledged "mistakes were made" in the handling of the firings. White House press secretary Tony Snow told reporters yesterday that Bush maintains full confidence in Gonzales.