The New York Times waddles in a few days late to note that "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." Suddenly, the Times is struck by the new question "of whether Mr. Fitzgerald properly exercised his prosecutorial discretion in continuing to pursue possible wrongdoing in the case."
There were those, of course, who were a little surprised that Mr. Fitzgerald's investigation lasted more than a couple of days. He had, after all, been brought on-board to give politically acceptable closure to an investigation that couldn't go anywhere because, regardless of how Ms. Plame's identity was leaked, it wasn't a crime to do so. That Mr. Fitzgerald bootstrapped an investigation into a non-crime into an indictment of Scooter Libby is problematic. For the Times, though, it is more problematic that Mr. Fitzgerald -- egged on by the Times because it hoped to embarrass the Bush administration -- used the on-going investigation to target journalists and, in particular, the Times' Judith Miller, who Mr. Fitzgerald disliked from a previous run-in in which she had warned an Islamic charity that Mr. Fitzgerald was about to search their premises. And yet, that is unmentioned in the Times' article.