No Comment — March 14, 2008, 1:16 pm

Roasting on a Slow Spitz

Campaign Money Frolic?
Yesterday, comparing the Spitzer case with politically-motivated prosecutions in other parts of the country, I started assembling a check list of what’s missing. Two things I noted right off the bat. A large number of the political prosecutions introduce a strong focus on campaign fundraising, as seen in the Siegelman case in Alabama, and the Minor and Diaz cases in Mississippi. This serves a specific partisan political agenda, which is to chill the environment surrounding campaign fundraising by the opposition—particularly when donors themselves are targeted. This technique worked brilliantly in the two Southern states—after the prosecutions were launched, campaign contributions to the Democratic party dried up, while Republican coffers swelled.

The other, which has been developed with particular vigor by the two Republican U.S. Attorneys in Pennsylvania, has been to assail public officeholders’ private use of car services, fax machines, franking privileges and telephones—something which was not previously recognized as wrongdoing, much less an offense. The nation’s most prominent former Republican Attorney General, Richard Thornburgh, took over the defense of one of these cases and stingingly assailed the Justice Department’s obnoxious and embarrassingly political pettiness. But the cases are still pending.

And today, the New York Times discloses that the effort to nail Eliot Spitzer lumbers on and is now embracing both of these dubious techniques. According to the Times

Federal prosecutors are investigating whether Gov. Eliot Spitzer used campaign funds in connection with his meetings with prostitutes, including payments for hotels or ground transportation, three people with knowledge of the investigation said.

Prosecutors have asked the governor’s lawyers about the travel arrangements for three trips, including his Feb. 13 rendezvous with a prostitute at the Mayflower Hotel in Washington. The United States attorney’s office in Manhattan has also asked about the governor’s use of car services during trips to Washington.

The governor’s lawyers have begun consulting with a campaign finance expert who has long worked for Mr. Spitzer’s political organization to see whether campaign money was spent on the trips, including some as recently as last month, a person briefed on the investigation said.

This is more evidence of how far-ranging the investigation has become. Is it per se abusive for the feds to be looking at these points? Certainly not. On the other hand, it fits into an established template of politically-motivated criminal investigation and prosecution. We’ll have to see how it develops. And we should be prepared not simply to question Spitzer’s conduct, but also that of his prosecutorial adversaries, who have already demonstrated a remarkable dexterity in breaking the rules to get their prey.

The National Surveillance State
Two more pieces out there today worth a read. My friend Jack Balkin reacted much the same way I did to yesterday’s Times article. He makes the point more compellingly than I do, however:

These events offer a window into a much larger phenomenon, the National Surveillance State, in which the state increasingly identifies and solves problems of governance through the collection, collation and analysis of information. Governments have always used information, but today’s techniques are made more powerful and more prevalent by lower costs of computing and data storage. This story also shows the important role played by private businesses in constructing and implementing the National Surveillance State. . .

The Spitzer story shows both the promise and the threat of these developments. On the one hand, reporting financial transactions makes the job of law enforcement easier, and it uncovers crimes (and terrorist plots) that might never be discovered otherwise. Mandatory disclosure (or in this case, voluntary disclosure by banks) of private individual’s financial transactions, and sharing of data between intelligence services, federal, state and local law enforcement helps the state identify patterns of criminal activity, prevent crimes before they occur, and punish them after the fact. These techniques and technologies allow governments to do the jobs entrusted to them more powerfully and more efficiently than ever before.

On the other hand, these developments carry all of the potential risks of a powerful National Surveillance State: Governments can make mistakes in assessing levels of criminality and dangerousness; and their data mining models may characterize innocent activity as suspicious. Without sufficient oversight and checking functions, government actors may misuse the additional knowledge they gain, for example, by instigating abusive prosecutions, or creating discriminatory systems for access to public and private services (like banks, airports, government entitlements and so on). And the more powerful government becomes in knowing what its citizens are doing, the easier it becomes for government to control people’s behavior.

This analysis has it just right, I think. The questions presented in the Spitzer case are important on several grounds. On one hand, we see “experts” repeatedly quoted with the view that banks are particularly at risk when dealing with public persons and therefore that they should move quickly to blow the whistle on suspicious activity. It seems fair to say that public persons have reduced privacy expectations, and that the public has a heightened interest in holding public office holders to high standards of conduct. On the other hand, as the powers of a National Surveillance State rise, the particular risk against which the public must be on guard is the use of these extraordinary surveillance powers for partisan political purposes—that is, their use to destroy political “enemies.”

That is, in my view, the vital and largely neglected optic through which this entire affair must be gauged. Spitzer was a particularly threatening political “enemy.” He was poised ready to take away one of the G.O.P.’s last remaining redoubts in the Northeast. The partisan desire to neutralize him could not have been more intense. And then, deus ex machina, it happened. This might be pure coincidence. On the other hand, the evidence that a partisan political hand lay on the rudder seems to be growing every day.

It’s very foolish to consider this case solely within the framework of the personal destruction of Eliot Spitzer. The larger parameters are far more significant. This is a test of the National Surveillance State which has arisen in the last seven years. How are these new realities affecting our legal system?

What Did the Albany G.O.P. Know, And When Did They Know It?
Just after the scandal broke, a number of New York pols told me they were convinced that the Albany Republican establishment knew “all about” Spitzer’s problems well in advance of the press reports. I couldn’t find anything that substantiated this suspicion, but Newsday’s Ellis Henican now presents the first evidence. He interviews Roger Stone, a man known as the ultimate dirty-trickster of New York politics.

But before I could even make my way to the Capitol to gather up a new pile of reaction statements, my cell phone was ringing from a place even nicer than this.
The call-back number said 202, for Washington. But the sunny voice on the other end could only be in Miami.

Yes, it was Roger Stone. And the exuberance in his voice made high-fiving Albanians sound almost morose. “I didn’t make him go to a prostitution ring,” said the most famous and ruthless Republican dirty trickster who still walks the earth. “He did that all on his own.”

Stone said that even before I asked if his hand was somehow in Spitzer’s latest trouble. I figured, somehow or another, it had to be. “No comment on that,” Stone said. “I will say I knew it was coming. That’s why I wasn’t too upset about the results of the special election,” where a Democrat grabbed a supposedly safe Republican State Senate seat, leaving Democrats just one vote shy of control.

Maybe this is pure braggadocio. But if Roger Stone did know that all of this was going down then the state’s Republican leadership most likely did too. That would be more powerful evidence of a politically corrupted investigation and prosecution.

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