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By Bill Altreuter

One more Spitzer post, and then we'll move on. I haven't heard anyone say anything about it, but isn't interesting to think about the arc of this story? It was such a stunner-- hard-nosed prosecutor brought down by his own hypocrisy-- that I'm not sure anyone has thought about it much, but consider this: Spitzer wasn't charged with anything when the Times released the story. He may never be charged with anything-- the Mann Act stuff is sleazy, but a slam dunk. If they were going to charge him, they could have done it. The "structuring" charge is interesting, and I don't think there is enough out there to say if it would stick-- Spitzer apparently used his own dough to pay for hookers, and if he was careless about the way he spent his money, that's still not usually the sort of thing the US Attorney for the Southern District gets worked up about, or you'd hear about a lot of guys in trouble for cashing two $5,000 buck checks a week. There might be a conspiracy to commit tax fraud or money laundering charge in there, but if there were, what was holding up the indictment? The Feds obviously had what they needed to indict, and they didn't, or hadn't to that point.

According to this piece from the New York Observer on the Friday before the story broke Metro desk reporter William Rashbaum got a tip that an individual named in a criminal complaint that had been unsealed two days earlier was a ?New York official?. The Times' reporters ran the tip down over the weekend, then ran the story that Monday, releasing it on the web first.

Now, here's the thing. Spitzer isn't identified in the Complaint-- there is nothing in the Complaint to identify Client 9. The fact that Client 9 was a ?New York official,? is information that could only have been within the knowledge of a few people. Maybe the members of the grand jury knew it-- but probably not. Maybe the Magistrate Judge-- Judge Ellis-- knew, but that also is unlikely. That leaves the FBI Agents who did the investigation-- we know they knew-- the US Attorney for the Southern District, (who also knew) and the Assistant US Attorneys who worked up the case. Disclosing grand jury information is a big deal. Grand Jurors don't do it, and people in the US Attorney's office know damn well that it is illegal to do so. And look at the timing of it: the tipster gave Rashbaum a weekend to do the necessary legwork-- lots of time, and ideally timed for an early week release.

In other words, it looks to me as though someone in the Bush DOJ-- specifically in the office of the United States Attorney for the Southern District of New York-- leaked grand jury information to a reporter for political purposes. Although the Complaint doesn't say anything about the identity of Client 9, it if full of what and where. A few phone calls, a look at the published schedules of a dozen or so New Yok officials and you are right on it. In fact, there is nothing in the Observer's account that suggests that the tip didn't include Spitzer's identification, which would have made the whole investigative process more a matter of verifying that he was in DC on the date in question. The leaker had to have figured that the story would break by Monday or Tuesday-- maybe Wednesday, latest. With no weekend to cool things off, and no notable Presidential primaries that week or other big stories to deflect the full glare of the media the Spitzer story would-- and did-- dominate the news cycle.

When you think about it that way, it starts to look a little like a coup, doesn't it? And wasn't that the effect? The leaker brought down a government.

So who was it? You can't fault the press-- they had a tip, they ran it to ground, and they reported on it promptly. That's actually what the press is supposed to do-- and what the Times, in particular, has rightly been criticized for not doing in the past. The Times did its job this time, and what a pity that the liberal media only ever seems to get it right when its a Democrat caught out. Who was the media savvy source that whispered in William Rashbaum's ear? If I were the US Attorney for the Southern District I'd want to know. As it is, I hope the US Attorney for the Southern District of New York wants to know, and I'd like to hear from him about what sorts of inquiries he is undertaking to find out-- as well as what he learns. Spitzer is certainly a heel and a hypocrite, but that's nothing new. He demonstrated how disliked he was, and that suggests that there are quite a few people who wouldn't have minded seeing him brought down, and in politics that's to be expected, but our process contemplates doing so in the daylight. A carefully timed, illegal release of grand jury information calculated to bring down a government is a different matter.

So how about it, Michael J. Garcia? Who knew the identity of Client 9 on March 7, 2008, and who told William Rashbaum?

Full post as published by Outside Counsel on March 15, 2008 (boomark / email).