March 14, 2008
Dershowitz on Spitzer
In the deluge of commentary on the Spitzer scandal, I thought this piece by Alan Dershowitz in the Wall Street Journal was the best. As he says, what we know of the investigation so far is very odd—not as odd as Spitzer’s behaviour, I grant you, but strange nonetheless.
There is no hard evidence that Eliot Spitzer was targeted for investigation, but the story of how he was caught does not ring entirely true to many experienced former prosecutors and current criminal lawyers. The New York Times reported that the revelations began with a routine tax inquiry by revenue agents “conducting a routine examination of suspicious financial transactions reported to them by banks.” This investigation allegedly found “several unusual movements of cash involving the Governor of New York.” But the movement of the amounts of cash required to pay prostitutes, even high-priced prostitutes over a long period of time, does not commonly generate a full-scale investigation…
In this case, if the serendipitous bank audit really led federal agents to Mr. Spitzer, and Mr. Spitzer led them to the Emperor’s Club, and federal prosecutors really wanted to get the Club, they could easily have sent an undercover cop to pose as a john, instead of tapping phones and reading emails — tactics designed to catch and embarrass Mr. Spitzer with his own recorded words, which could be, and were, leaked to the media. As this newspaper has reported: “It isn’t clear why the FBI sought the wiretap warrant. Federal prostitution probes are exceedingly rare, lawyers say, except in cases involving organized-crime leaders or child abuse. Federal wiretaps are seldom used to make these cases …
What exactly were the Feds investigating in the first place, and why? Summing up, Dershowitz quotes Beria, I think aptly:
Lavrenti Beria, the head of Joseph Stalin’s KGB, once quipped to his boss, “show me the man and I will find the crime.” The Soviet Union was notorious for having accordion-like criminal laws that could be adjusted to fit almost any dissident target. The U.S. is a far cry from the Soviet Union, but our laws are dangerously overbroad.
Both Democrats and Republicans have targeted political adversaries over the years. The weapons of choice are almost always elastic criminal laws. And few laws are more elastic, and susceptible to abuse, than federal laws on money laundering and sex crimes. For the sake of all Americans, these laws should be narrowed and limited to predatory crimes with real victims.
This is one reason I find the chorus of exultation over Spitzer’s downfall hard to take. Another is that it is wrong in any case, in my view, to criminalize prostitution—a victimless crime if ever there was one. But having said all this it is difficult to summon much sympathy for the man. You could never accuse Spitzer of having exercised restraint in his use of broadly framed laws, not to mention the awesome and largely unchecked powers of his office, to coerce his targets into submission without the nuisance of a trial. He was on the right side of a lot of the investor-protection issues he chose to champion as a prosecutor, I think, but still by word and deed he always struck me as a tyrant. It is dangerous to trust that kind of man with that kind of power. It is still a great shame that it took this to stop him in his tracks
> (Eliot Spitzer) always struck me as a tyrant.
> It is dangerous to trust that kind of man
> with that kind of power.
Theoretically, yes. But as far as how this particular man actually handled that power, evidently not:
1 “He was on the right side of a lot of the investor-protection issues he chose to champion as a prosecutor.”
And
2 The voters, knowing all that, chose to elect him Governor.
Unlike falsely-accused showbusiness personalities who have much more to lose by proving innocence in court than by settling, the reality of the nature of banking on Wall St is that
1 we know who among us are guilty and who has been falsely-accused;
2 counter-parties will continue to trade with falsely-accused banks;
3 all major banks have the resources to fight a Prosecutor with no case; and,
4 jurors selected from residents in the area know better than to swallow the simplistic demonisations in the tabloids.
The investment bank I work for was not among the ones targetted, but–straight-faced denials to outsiders and rationalisations among fellow insiders aside–the ethical and legal violations actually committed, plus the extra profits made as a result, made the settlements a bargain.
The man can be accused of indiscretion, even immorality and outright stupidity, in this case. But knowing the above, and beyond deciding to break with the tradition of turning a blind eye to ‘conventional industry practices’, find me grounds to accuse him of abuse of power as Prosecutor or as Governor.
Not everyone who is reviled is necessarily wrong. Bring the full force of the law upon the guilty and they will plot their revenge–this one is it.
Posted by: (anonymity requested) | March 14th, 2008 at 12:26 pm | Report this commentSpitzer’s arrogance and hypocrisy (not to mention his stupidity) make him a singularly unappealing victim, notwithstanding the great good that he accomplished as a prosecutor and his courageous (initial) stand on driver’s licenses for illegal immigrants, which may, hopefully, be remembered as his finest hour in a more tolerant and less racist America of the future.
Posted by: algasema | March 14th, 2008 at 1:09 pm | Report this commentIf Spitzer was client number 9 then who was client number 8/7/6/5 etc. ?
Posted by: paul dunne | March 14th, 2008 at 1:38 pm | Report this commentIt seems all too political in it’s timing. Reports claim that Spitzer’s been doing this for a long time. So why now? It’s an election year, and he has been one of the bright stars for the Democrats — no doubt he was up for consideration as a VP candidate.
Laws on sex and money laundering in the USA are utterly ridiculous. They can pretty much lock up
Posted by: joe smith | March 14th, 2008 at 2:18 pm | Report this commentanybody at any time with these laws. Let’s be
clear: these laws are used to opress people in a very basic way. Spitzer’s downfall is humorous given his hypocrisy, but it also strikes fear by illustrating the powers of the Feds to go after whoever they like.
Congrats to a 22 year old doing what many could not.
Posted by: Howard | March 14th, 2008 at 2:18 pm | Report this commentAnyone gunning for the Lt. Gov? An why is that?
Because he is a gentleman, consistant is his ideals coupled with his governing efforts.
Maybe Spitzer’s personality is the problem but being a bully seems to have begun to seem acceptable. If not for the distorted interests of the powers that be, the American public and media
seem too dense to question or hold accountable any public officals or their actions.
My personal view is this is a conspiracy to bring Spitzer down. The non disclosure other clients of Emperor Club except for Spitzer is clearly showing the bad faith on the part of the investigation, do come clean and reveal the rest, not Spitzer alone!
Posted by: Sue | March 14th, 2008 at 2:45 pm | Report this commentAlthough I have strongly agreed with Alan Dershowitz in the past I think in this case he may be slightly incorrect in his judgement.
1. Often politicians are tempted to erase prohibitions or mandates - these people are libertarians. Gov. Spitzer on the other hand was in the business of enforcing just such rules and laws.
2. Gov. Spitzer was very glad to hurt people for things he loves to do.
3. And probably most important: Spitzer used government resources to order prostitutes and used state police security to protect his personal sphere as he broke laws.
I would recommend another article in the WSJ, for those who are interested on the very subject of Spitzer’s behavior particularly towards the press as an interesting addition to Mr. Dershowitz’s arguement:
http://online.wsj.com/article_print/SB120528114453028807.html
It only follows that Spitzer was pursued in the same way that he pursued others. Otherwise his law is different from everyone elses. And that just ain’t fair!
Posted by: Joesph | March 14th, 2008 at 2:56 pm | Report this commentProtitution is not a victimless crime. Most of the woman who are involved at the “business” end of the profession are indeed the victims of extreme economic injustices, often at the receiving end of poverty and abuse of some form from their earliest lives. When no other way to get the money to get your life together, pay the rent and feed your kids is apparent, then resorting to quick money grabs will. Imagine if teachers were paid what these escorts and call girls were!
Posted by: Amelia | March 14th, 2008 at 3:39 pm | Report this commentOn the one hand, Dershowitz is right to be suspicious of a politically-targeted investigation of Spitzer. On the other hand, it uncovered an appalling lack or personal judgment and flawed character that might have had more serious consequences had Spitzer continued his magisterial progression to the pinnacle of Democratic Party politics.
Posted by: Ralph Hitchens | March 14th, 2008 at 4:17 pm | Report this commentIt does not matter why prosecuters went after Spitzer.
Spitzer made so many enemies, only a complete idiot would expect to could get away with this kind of foolishness.
New York State did not need an idiot for a governor. End of analysis.
Posted by: Thomas Renda | March 14th, 2008 at 4:43 pm | Report this commentIn his years as a prosecutor and attorney general, Eliot Spitzer went after bad guys and some very powerful bad guys at that.
What does it suggest that people cheered when he was brought down?
Will someone be more cautious in stepping into his shoes seeing how someone whose job it is to uphold the law is treated?
Posted by: toosinbeymen | March 14th, 2008 at 5:30 pm | Report this commentIf Eliot Spitzer must resign, I want Senator David Vitter of Louisiana to resign, too, for his involvement with the DC Madam. Vitter did exactly the same thing that Spitzer did - only thing is, Vitter’s a Republican. The Vitter case has been forgotten by politicians and the press and he’s still a senator.
Where’s the Justice!
Posted by: toosinbeymen | March 14th, 2008 at 5:37 pm | Report this commentProstitution is not a victimless crime I agree, but at this price and hotel level one has a hard time sympathizing with the prostitute or the john.
I agree with R Hitchens above, Spitzer had a “jones” that had to be itched and his hypocrisy brought him down, though politically motivated prosecutions should always be questioned, especially now in light of the Alabama governor’s obvious politically inspired railroading.
in re the other numbered clients: despite the analysis of a certain officer’s resignation over disputes on Iraq and Iran policy, it does make you wonder?
Posted by: leftymn | March 14th, 2008 at 6:44 pm | Report this commentleftymn’s reference to the politically motivated prosecution of the imprisoned Democratic governor of Alabama, Don Siegelman, is very much on point. This is not to say that one can tell for sure that the investigation of Spitzer was politically inspired, but suspecting that the deft hand of Karl Rove may have been behind the decision to wiretap Eliot Spitzer is not all that far fetched. We should also be asking if this is why Bush/Cheney are so eager to have unlimited surveillance power without any court supervision.
Who would ever be naive enough to think that they are exclusively, or even mainly, interested in catching terrorists?
Posted by: algasema | March 14th, 2008 at 7:56 pm | Report this commentMr Spitzer lacks in judgment. And a governor needs to have good judgment and integrity. Fortunately, New Yorkers have found out this by now.
Posted by: Swedish observer | March 14th, 2008 at 10:09 pm | Report this commentAnd, even more fortunately, and certainly unusually, New Yorkers did not have to pay for this knowledge. Imagine if he had done something really stupid or dangerous!
I would like to change my reference to the “politically motivated prosecution” of the governor of Alabama to read: “alleged politically motivated prosecution”. While there is widespead suspicion that the prosecution was politically motivated, and I can certainly sympathize with leftymn’s comment on the subject, there is no hard evidence of this, so far as I am aware.
Posted by: algasema | March 15th, 2008 at 1:14 am | Report this commentI agree that something is very fishy in the story so far. Routine breaches of the limits on cash transactions would not normally trigger a federal investigation and the statement that the FBI thought that it might signal bribery is odd since Spitzer was paying the money out - did they think that he was bribing someone - and he is very wealthy in his own right (his father is worth about $500 million. It is also strange that the FBI got involved in a prostitution case where the total turnover over several years was around $1 million. Given the politicisation of the justice system under the present Administration it seems far more likely that it was a case of selective prosecution for political purposes.
Posted by: Ian | March 15th, 2008 at 2:18 am | Report this commentAmerican justice is increasingly politicised. That said, who can do anything but rejoice at the fate of that charmless, bullying hycrite whilst having sorrow for the agony he has put his family through.
However, there must be questions about how this man was able to spend $80,000 of after tax income on a salary of about $200,000. Perhaps the investigation should concentrate on his finanacial dealings.
Posted by: oldasiahand | March 15th, 2008 at 8:23 am | Report this commentDEFINE HYPOCRISY: John F Kennedy spoke of the virtue of contributory patriotism while in violation of at least two others–he was an unabashed womaniser and concealed his health problems from the public. Does this make him guilty of ‘hypocrisy’?
There was a time when the term accurately only referred to those who violated the same virtue(s) they themselves preached–say, the anti-gay marriage politician or homophobe minister caught with a male lover.
If
> prosecuting breach of fiduciary duty
> committed by those who are paid millions to manage our billions
at one time, and
> hiring a prostitute / marital infidelity
in another time makes one guilty of ‘hypocrisy’ and disqualifies one from public office, then we are
> demanding nothing less than perfection.
The result of which is we shall get
> nothing more than politicians who are impeccably deft at
> hiding their vices from our eyes.
If you demand [expressions of religious faith] from politicians,
Posted by: J Michael, private banker, 39 | March 15th, 2008 at 2:09 pm | Report this commentyou are just begging to be lied to.
They won’t all lie to you, but a lot of them will.
And it will be the easiest lie they ever have to tell
to get your votes.
(fictional Sen Arnie Vinick, the West Wing)
Alan Dershowitz’s article in WSJ was first quoted by a contributor on John Gapper’s blog but as it has been commented on here , would like to add the following:
I disagree with Professor Dershowitz on most points he is raising.( no point in addressing those in turn here)
It suffices pointing out that Spitzer brutally used against his own targets and victims the very methods and tactics Prof. D decries and condems as stalinist..
Where by the way are Prof. D ‘S articles condemning the “broad interpretation of federal laws” by prosecutors when it was Spitzer who was doing the interpreting..?
(Talking about elastic laws , the way Spitzer treated Grasso, Bruno, Greenberg etc, left much to be desired from a law application angle.)
Prof Dersowitz is recognized as a leading legal Scholar and US constitutinal lawyer. He is also a leading Liberal Democrat , was a fervent supporter of Bill Clinton in the impeachment case , and was the Harvard professor, mentor and friend of Eliot Spitzer.
Posted by: Marie-Athena ,lawyer | March 16th, 2008 at 4:46 pm | Report this commentIt seems he argues the case more in politics terms than in Law,
and from the comments his article triggered, many have questioned his moral authority to opine on the matter.
The methods used by the FBI have more to do with terrorism and organized crime than with prostitution, and the amount of money involved is trivial for a wealthy man like Spitzer. Spitzer had it coming, but with enemies like his, I feel that real reason behind this whole investigation had less to do with public virtue than with dirty politics.
Posted by: VP | March 17th, 2008 at 12:06 am | Report this commentJ. Michael,
Apparently, when Mr Spitzer was the New York State Attorney General, he prosecuted at least two prostitution rings of the sort he was allegedly involved in himself. In at least one of these cases, he was also quite outspoken in his public condemnation of those involved. If that isn’t hypocrisy, I can’t imagine what is.
Posted by: Thomas S. | March 18th, 2008 at 3:51 pm | Report this comment