Legal Commentary

Spitzer "casts himself not just as an enforcer of the law per se, but also as an enforcer of a broader social compact"

By Beldar

The quote in the title of this post comes from a 2005 article in the New York Times Sunday Magazine on "Spitzerism" as a law enforcement philosophy. It was written by The New Republic's Noam Scheiber. In response, I posted here to agree with Scheiber that Eliot Spitzer, a rising-star Democrat who was at that time New York State's showboat Attorney General, had certainly never acted as though he was constrained by mere "law per se." But I ridiculed Scheiber's contention that such "qualities" made Spitzer an attractive candidate for national office on a Democratic ticket. I pretty much want my prosecutors and attorneys general to stick to "law per se." It seemed to me that Scheiber's heroic notion of "Spitzerism" was pretty much a code word for "unscrupulous and overambitious prosecutor running amok (mostly against Republican targets)."

Today it was announced, however, that now-New York State Governor Eliot Spitzer, whose administration has already been tarnished by assorted scandals, was involved with (at least as a client of) a now-federally indicted international prostitution ring. His involvement with the ring was apparently sufficient that he had a credit balance on his account with them ? the precise size, and the offset of which against new charges, he's apparently quoted (as "Client-9") arguing about by phone with the ring operators in an affidavit attached to the just-unsealed federal criminal complaint. It thus seems likely that Spitzer himself has, at a minimum, violated the "law per se" of New York and/or Washington, D.C. against contracting for sex from prostitutes, although he has not yet himself been charged with any crime.

There's also a suggestion that he paid for a prostitute's train ticket to travel from New York to Washington for their tryst. So in addition to the underlying offense of violating state anti-prostitution laws, it's not inconceivable that Spitzer himself could be charged, either as a principal or co-conspirator, with violating the federal Mann Act and the federal wire fraud statute. As a former state attorney general and, before that, a prosecutor on the staff of Manhattan District Attorney Robert M. Morgenthau specializing in organized crime rings, he could not have been unaware of the likelihood of connections between an international prostitution ring like this one and other, more sinister organized crime operations. He could not have been unaware of the possibility that he might be subjected to blackmail attempts. The Governor of New York simply can't expect to be an "anonymous john."

Were I Czar, I would decriminalize the exchange of money for sexual favors among genuinely consenting adults. But I'm not, and the legislative bodies that make the laws applicable to Spitzer's conduct haven't decriminalized that conduct either. His transgressions occurred while he was an elected public official ? indeed, the chief executive branch official of the State of New York, who had sworn an oath upon taking office to uphold and enforce the laws of that state.

He has not yet resigned; his very short afternoon news conference was just a vague announcement of unspecified failings and an apology, after which he took no questions. I don't interpret that as necessarily evidencing an intention to hunker down, Larry Craig-style, to try to ride out the storm. Rather, I note that unlike most vice cases (which typically are brought by state prosecutors in state courts solely under state law), this is a federal criminal case, in which Spitzer is at least a potential witness with respect to charges against the existing defendants. Perhaps the interstate nature of the ring explains the federal involvement by itself, but I wonder whether there's way more to this story ? and specifically, to Spitzer's involvement in it ? than his simply being an "ordinary client" of the ring. So far, the feds have spared him the indignity of a perp walk in cuffs, but that doesn't mean one's not coming. The New York Sun reported that these particular federal prosecutors are from a unit "specializing in government corruption cases." I speculate ? and, in fairness, I emphasize that this is nothing more than my uninformed speculation, just a gut hunch ? that there's another shoe (or boot or anvil) that we haven't heard drop yet.

Whether it's on the potential federal charges mentioned above, or something much less savory and much more culpable than money for sex across state lines, my guess is that Spitzer's lawyers are already in plea negotiations with the federal prosecutors, and that one component of a plea deal under discussion would include his resignation. Resigning, in other words, may be inevitable, but if he is himself a potential target of criminal prosecution and he announces it before plea negotiations are exhausted, it loses its value for that purpose. If, by contrast, he were relatively sure that he's not himself a potential target of prosecution, and he'd already made a decision to hunker down, I would have expected him to announce that today, to get it all over with at once before going "to the mattresses."

Spitzer's self-righteousness, egotism, and overweening ambition have earned him many enemies. Earlier today I heard legal pundit Greta Van Susteren on Fox News say something to the effect that Spitzer is "hated on Wall Street" because he's tried to "clean up the corruption there." But not all, nor even most, of Wall Street is involved in corruption, and Spitzer is hated by many who are themselves squeaky clean. He's been a class warrior, demonizing not just corrupt businessmen but businessmen and their businesses in general. Tonight, toasts will be drunk to his political demise, and cigars will be metaphorically lit from the bonfire of his career. It's hard for me to imagine that there are many fellows who are more deserving of that scorn and schadenfreude.

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UPDATE (Mon Mar 10 @ 7:30pm): ABC News reports (h/t TPM) that the "federal investigation of a New York prostitution ring was triggered by Gov. Eliot Spitzer's suspicious money transfers, initially leading agents to believe Spitzer was hiding bribes, according to federal officials," and that Spitzer

is likely to be prosecuted under a relatively obscure statute called "structuring," according to a Justice Department official.

Structuring involves creating a series of financial movements designed to obscure the true purpose of the payments.

This suggests Spitzer was taking out big chunks of cash ? consistent with the impressive fees reportedly charged by these high-dollar callgirls ? in chunks of less than $10,000 in an attempt to avoid the paperwork that banks must file for $10k+ cash transactions. I've read elsewhere that Spitzer has family money, so that even on a public servant's salary, he probably could finance this habit without needing bribe money. Also per the same ABC News report:

It was only months later that the IRS and the FBI determined that Spitzer wasn't hiding bribes but payments to a company called QAT, what prosecutors say is a prostitution operation operating under the name of the Emperors Club.

That sounds pretty plausible to me. If there were no other organized crime connections, that's the kind of crime that might well result in a no-prison time recommendation and sentencing calculation for a first offender pleading guilty and cooperating. Various other press and blogospheric sources are now reporting that Spitzer is likely to formally resign tonight ? and the time difference between his afternoon press conference, which was necessary to address an imminent NYT story, and a resignation tonight would represent about the right amount of time for the lawyers to sew up the paperwork for a formal plea agreement that includes his resignation.

Full post as published by BeldarBlog on March 10, 2008 (boomark / email).