No Comment — March 13, 2008, 7:04 pm

Spitzer Set Up?

I love to argue with my colleague Ken Silverstein, so how could I pass up a reply to his last post?

Most people view the issues surrounding the Spitzer resignation as some sort of binary process. Either Spitzer is innocent and has been framed, or the feds did a great job ridding us of a charlatan who was disgracing the office of governor. On that framing, I go for option two: the investigation exposed tawdry and immoral conduct, and Spitzer should have and did resign.

Now once that is out of the way, we should be asking a second set of questions. Did the feds behave correctly in their management of the case?

Ken presents it as a Spitzer “set up.” But that is leading back down the guilt-or-innocence issue that I just disposed of, suggesting that somehow Spitzer may have been entrapped. That’s not an issue. The newspaper accounts, forming the imperfect world in which all of this is analyzed, suggest that Spitzer solicited prostitution on February 13, and there is nothing to support the idea that he was entrapped. What I argued was something different: the feds had built their case against the prostitution ring and were ready to go, but they held back in the hopes that they would bag Spitzer, too. They could have gone with the announcement back in January. But they didn’t. That’s very revealing.

In this case the feds violated some basic rules—as even John Farmer, in doing his best to defend them, acknowledges:

  • They prepared pleadings which were filled with salacious detail that served no purpose other than the public humiliation of “Client 9.”

  • They then tipped the press to the fact that “Client 9” was a New York public official, and then to the fact that he was Eliot Spitzer. Over the next 48 hours, they filled the press with copious additional details surrounding Spitzer, many of them lurid.

All of this made marvelous copy for the tabloids and helped Jon Stewart’s Daily Show to one of its funniest segments in recent weeks. (Today, however, the Times profiled the working girl at the center of the storm. I was disappointed to learn that her name was not “Cinnamon.” Alas, it is just the fake news.) But it also violated basic rules of prosecutorial ethics and can only be explained by a partisan political motive: to take down a prominent political figure of the opposition party. It was entertaining, funny, and bad for our system of justice.

The next question goes to how the investigation got started. On this point there is no dispute that Spitzer’s request that his name be removed from a funds transfer and his aggregation of transfers to keep them under the $10,000 reporting threshold was a justifiable basis for the bank to file a Suspicious Activity Report (SAR). This went to the IRS, and the IRS in turn put it into the hands of the Public Integrity Section. There are plenty of questions that can be asked about this process, for instance whether North Fork had other motives. Similarly, the IRS says it gave the SAR special treatment because it related to Spitzer, not because there was a particular suspicion of a crime.

Moreover, Ken quotes sources who are now inventing more plausible explanations for the investigation than the ones actually offered by the bank. I don’t think we should invent new facts that work better. We really do need to examine the ones which were actually offered. Still, there is a basis to say that the SAR was legitimate; there’s also a basis to ask some more questions about what actually happened. So was the investigation launched as the result of Spitzer’s own stupid conduct? Yes. But that’s just one chapter of the story.

The real questions begin when the Department of Justice enters the picture–after the IRS refers the matter to the Public Integrity Section. What is the measure of “normal” in a case like this? I have now looked at a long list of cases in which accusations of highly irregular financial conduct were lodged against Republican elected officials. In each of these cases, the Bush Justice Department reacted by doing nothing. No review of payments and bank records. No questions. No investigators. No warrants for wiretaps. It concluded that there was an insufficient basis to launch an investigation. In two of these cases there were extremely specific, well documented allegations–not something as nebulous as a SAR. So my reaction to arguments that the Public Integrity Section reacted with something akin to “standard operating procedure” is to say: certainly not. It took the SAR as a license to launch a major fishing expedition. And in the end it landed its fish.

No doubt there are a lot of folks who think that this is the way the cookie crumbles: Republicans go after Democrats and Democrats go after Republicans. Both protect their own. That’s the formula for a banana republic. I want the Justice Department to be detached from partisan politics, and to apply the same standards without regard to the letter that follows the public figure’s name. That might be an unrealistic objective, but I figure we’re never going to get there unless prosecutors get called on it when they cross the line behave in a way that reveals partisan bias.

In the present case, the media are actually complicit in this problem. They get a good story that helps them sell copy when prosecutors and investigators violate their ethical responsibilities and start talking about things they shouldn’t be talking about. So the media have no motive to blow the whistle on their informants, or even to criticize them. When the New York Times, which has exercised an impressive ownership of this story, runs an op-ed defending the conduct of the prosecutors—without ever having run a word raising questions about the way the case was handled—we’re entitled to call “foul.”

No doubt there are plenty of lawyers, especially former prosecutors, who will disagree with me. That’s the way our system works. Our system offers no incentives for criticizing prosecutors. They are, after all, very powerful people.

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