No Comment — March 13, 2008, 9:19 am

Farmer’s Folly

In today’s New York Times, a New Jersey Republican politician and former prosecutor, John Farmer (whom the Times inexplicably fails to identify by his political badge—an issue that the Public Editor needs to address), counters concerns that the investigation that brought down Eliot Spitzer was politically motivated. In Farmer’s presentation, concerns about the way the prosecution was brought are being raised by “supporters of Spitzer” as part of a “strategy” in his “defense.”

Farmer’s analysis is feeble and unconvincing, and his premises are false.

The guilt or innocence of Eliot Spitzer has nothing to do with concerns about the use of the prosecutorial process for partisan gamesmanship. I raised these concerns very early on. I am not a “supporter” of Spitzer—in fact, I insisted that Spitzer resign immediately. In my view, his failure to counter or reject the accusations in his initial appearance sealed his fate. It also presented the unseemly and unacceptable specter of a high public official holding on to office to use resignation as a bargaining chip—as has happened repeatedly in recent years. This degrades the integrity of public office and should not be countenanced.

The public in New York was angry at Eliot Spitzer—at least to the extent it was not snickering and laughing at his expense. It should have been. And now it should direct its careful attention at the conduct of the federal prosecutors and investigators involved. Their conduct falls seriously short of professional standards, and they have some pressing questions to answer.

Even in defending them, Farmer acknowledges, as he must, that the conduct of the investigation failed to meet minimal professional standards. He agrees that the prosecutors filled public filings with salacious details and developed a suspicious and unprofessional rapport with the press (which the press, including the Times, perhaps unsurprisingly is unwilling to note or criticize). He correctly observes that this “is simply inexcusable.” But Farmer falls down in the overall analysis, and in fact he fails even to note or discuss the graver charges. His point in the end is that the charges ring true, so the case is closed.

But the ultimate guilt or innocence of the target and the question of whether the investigation was politically motivated are entirely distinct points. Farmer’s analysis would let the prosecutors ignore their professional obligations any time they can make their charges stick. I have seen the sort of society that produces around the world, and I have a strong sense that America under George W. Bush is headed in just this direction.

In this case, the facts are not fully developed, but we learn a little more every day. Today’s Times tells us that the North Fork Bank launched the inquiry by submitting a Suspicious Activity Report against their client, Governor Spitzer, on the basis that he had made a number of smaller payments in order to avoid a $10,000 threshold for reporting. The Times quotes Bob Serino, a former counsel at the Treasury Department, as saying that “Banks could certainly decide that a politician’s risk rate is higher and thus have a higher level of due diligence set for someone like Spitzer.” This is true, and it points to an Orwellian deterioration of relations between banks and their customers which undermines a basic service relationship. Instead of serving their clients, banks are increasingly asked to spy on their clients for the benefit of a pervasive national surveillance state. The prospect that this will be used for abusive purposes, especially with elected officials and other public purposes, is strong, and in fact well demonstrated by the Spitzer case. Indeed, the suspicion that the bank apparently articulated, that Spitzer was laundering bribes, is and was absurd. But that baseless “suspicion” was enough to launch a massive fishing expedition into the governor’s finances and is now very aggressively invoked by prosecutors as cover for what increasingly looks like a political hit job.

Even more troubling is the fact that Spitzer, as a law enforcement officer, had challenged practices of North Fork Bank and had considerably embarrassed the bank and its management. This raises the obvious concern that retaliation, and not prudent oversight, was the motive behind the bank’s decision to report Spitzer to federal authorities.

But even beyond this opening phase, the conduct of the case, to the limited extent it has surfaced in public filings and newspaper accounts, points to very questionable calls on the part of politically appointed law-enforcement officials. They decided to devote massive resources to the matter which could not be justified on the basis of the small payments in question. Did they invest these resources not because they had detected a crime—there was none—but because they had a prominent Democratic officeholder in their sights and they wanted to find something compromising about him? This is a common practice in much of the world, and indeed there is a specific term for this in Russian, it is called ?????????. This concern has not been dispelled. Indeed, the more information we gather, the more is builds.

The report of the investigation shows that prosecutors and investigators had assembled their case against the prostitution ring by mid-January. But they held back. They were waiting for their true prey, which was not the prostitution ring. They were out for Eliot Spitzer. He apparently booked another transaction on the eve of Valentine’s Day. The allocation of resources for this operation again was massive, and included a stake-out of Spitzer’s hotel room and comprehensive surveillance. Again, the prosecution team was not out after a crime, it was out after a person.

The key questions that need to be asked go to the extraordinary allocation of resources and manpower for this operation and the application of level standards. Here again, the Bush Justice Department has one set of standards when Republican officials fall into a prostitution ring, and an entirely different set when the target is a Democrat who is threatening the Republican Party’s power base in Albany. We just need to look over the “D.C. Madam” case, which caught in its snare a high-level official of the Bush Administration and a Republican senator. But the Bush Justice Department’s attitude towards that case couldn’t be more different. It is deferential towards the customers and has shown no interest in bringing charges against any of them. It has also engaged in extraordinary somersaults to keep the names of the Republicans caught up in the case out of the media. The two cases, compared with care, point convincingly to a partisan political double standard.

The Bush Justice Department complains it has no resources to investigate or deal with the case of Jamie Leigh Jones, a woman from Houston who was gang-raped, brutalized and held hostage by American contractors in Iraq. It claims it has no resources to deal with dozens of similar cases involving rape and assault by or against U.S. citizens. It has no resources to deal with hundreds of cases involving massive contract fraud, tallying into the billions of dollars, in Iraq. Its prosecution of white-collar crime across the country has fallen through the floor. But this same Justice Department allocates millions in resources to ensnare a prominent Democratic politician in a sex tryst at the Mayflower Hotel. This evidences an extremely curious set of priorities—priorities which are suspiciously driven by a partisan politics, not a sober and responsible interest in law enforcement.

The public has an interest in being protected against politicians who betray their trust through immoral and unethical behavior. But its interest in insuring that the machinery of the criminal justice system is clean from the taint of partisan political manipulation is still stronger. In this case, the public should be angry at Eliot Spitzer. But it should reserve its real rage for the Justice Department, whose political shenanigans are destroying the public’s trust and bringing our criminal justice system to a point of rupture.

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