• This is a rush transcript from "The Journal Editorial Report," December 20, 2008. This copy may not be in its final form and may be updated.

    PAUL GIGOT, HOST: Coming up next on "The Journal Editorial Report," as the Blagojevich story unfolds, some people are wondering if Prosecutor Patrick Fitzgerald's own words could jeopardize his case against the Illinois governor.

    And the $50 billion heist. How did Bernie Madoff pull it off? And could he have been stopped?

    Plus, Obama's pick to shapeup of the nation's public schools. Is Arne Duncan a true reformer? We'll take a closer look at his Chicago record.

    "The Journal Editorial Report" begins right now.


    PATRICK FITZGERALD, FEDERAL PROSECUTOR: Governor Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree.

    But the most cynical behavior, the most appalling is the fact that Governor Blagojevich tried to sell the appointment of the Senate seat vacated by President-elect Obama. The conduct would make Lincoln roll over in his grave.


    GIGOT: Welcome to “The Journal Editorial Report." I'm Paul Gigot.

    With that announcement almost two weeks ago, U.S. Attorney Patrick Fitzgerald sent the state of Illinois reeling. But did he jeopardize any future prosecution of embattled Governor Rod Blagojevich?

    Attorney Victoria Toensing is a former Justice Department official. She joins me now from Washington.

    Victoria, good to have you back with us.


    GIGOT: You said — recently you wrote for the Wall Street Journal — that although you are a Republican, you take no pleasure in seeing a prosecutor violate his ethical obligations in prosecuting a Democrat. How did Patrick Fitzgerald violate ethical standards?

    TOENSING: There's a very strict rule for prosecutors, Paul, and that is you're not supposed to say anything that would heighten public condemnation of the defendant. In other words, you're not supposed to try to taint the jury pool. We, people in criminal law, call it, you're not supposed to talk outside the four corners of the complaint or indictment.

    So he can quote from the complaint that he made or he can even introduce other law enforcement officials who were involved in the case. But he is not supposed to say things like "Lincoln would roll over in his grave."

    And the FBI agent — he's also the prosecutor, Fitzgerald, is responsible for the FBI Agent's conduct. The FBI agent said the FBI agents who worked the case, were revolted and disgusted. That also is improper.

    GIGOT: Once Fitzgerald heard those tapes and figured, well, the governor might actually appoint a U.S. Senator, didn't he have an obligation to go public to prevent the governor to make a play to pay trade in appointing a Senator?

    TOENSING: He gives that rational and I don't even understand it. Presumably, if we go along with what Fitzgerald is saying, the only person he's going to appoint is somebody who paid to play. If that's the case, then that person too if corrupt. You've got a twofer. Why not wait until the crime came to fruition. I think perhaps those comments aren't going to — certainly the case isn't going to go away because of those comments. The defense attorney will sure make a lot of hay out of it. But his personality, by stopping this case, is what could jeopardize this case. I call it payment interruptus. He stops before there was a fruition of the crime.