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FITZGERALD DIDN’T HAVE TO INDICT TO SUCCEED To the editor: In the concluding paragraph of his Oct. 24 article on the CIA leak investigation ( “Fitzgerald’s Arsenal: An Indictment Primer,” Page 15), reporter Jason McLure says that if special prosecutor Patrick Fitzgerald declines to indict anyone, it will be an admission that his lengthy and expensive investigation “was all for naught.” This is an unfortunate and mistaken claim. In white-collar cases — unlike violent crime, drugs, or other areas — a major purpose of the grand jury investigation can be to determine whether a crime was committed at all. There may be false documents, inconsistent statements, or leaked classified information, but it may be not at all clear whether anyone acted with the requisite criminal intent. When white-collar prosecutors conduct a thorough grand jury investigation and conclude that no criminal charges are appropriate, they have done their job. The public interest is served because potentially suspicious facts have been carefully examined to determine whether, in fact, there was any criminal conduct. Career prosecutors like Fitzgerald understand that this is part of their role. Comments such as McLure’s suggest that white-collar prosecutors have somehow failed if they do a thorough investigation and decide indictments are not appropriate. Unfortunately, this only increases the perceived pressures on prosecutors in a big case to bring some kind of charges, no matter how weak or tangential, in order to avoid having their labors characterized as “all for naught.” I’m confident that Fitzgerald is immune to any such pressures, but past experience, particularly under the old independent counsel statute, suggests that others may not be. Randall Eliason Professorial Lecturer in Law George Washington University Law School Washington, D.C. Eliason is a former chief of the public corruption/government fraud section of the U.S. Attorney’s Office for the District of Columbia.

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