On Monday a friend gave me a copy of a memorandum (pdf) that Attorney General Michael Mukasey had circulated inside the Justice Department admonishing staff about how to deal with politically sensitive cases. "They must be about to bag another big-time Democrat,” my friend said, jokingly. Perhaps it wasn’t a joke. Within hours the wires were burning with reports that New York Governor Eliot Spitzer had been linked to a prostitution ring.
Spitzer’s public statements did not include protestations of innocence, as might have been expected if he were to vigorously contest the claims circulating in the media. Moreover, media accounts point to a damning case. Spitzer, known for an aggressive prosecutorial style that earned him enmity in key Wall Street financial circles, had as attorney general gone after a prostitution ring or two, so a charge of hypocrisy has been added to the mix.
All of this makes for excellent copy, particularly for the cable news networks and other outlets that feed off just this sort of tale of personal fall. But there may well be a story-behind-the-story. How did the case against Spitzer get launched? Was he brought down by a politically motivated investigation?
The integrity of our criminal justice system rests on the notion that we investigate crimes, not people. As Robert Jackson, probably the greatest attorney general of the last century, put it:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.
The way prosecutorial power is wielded divides a real democracy from a banana republic.
The story emerging around the fall of Eliot Spitzer suggests that the case did not start with the report of a crime. Rather it started with a decision to look into Spitzer and his financial dealings. In the course of an open-ended investigation, information about a prostitution circle surfaced. That looks abusive. An investigation like that provides no basis to acquit Spitzer. But it suggests that when his case is done, the public should be pressing some tough questions about why this investigation was launched and pushed forward.
Specifically, the official narrative suggests that a Long Island bank noticed an odd pattern of payments made by Spitzer between different accounts. The payments were not enormous sums and the bank is said to have been concerned that a large number of transfers were made so as to fall below the $10,000 reporting threshold. The Los Angeles Times reports that Spitzer asked that his name be taken off the money wires, which reportedly aroused suspicion. The bank submitted a Suspicious Activity Report (SAR) to the IRS. The payments which totaled up to $80,000, looked suspicious, we are told, and were examined on the basis that they might be an effort to money-launder bribes. This was reported to the IRS in Hauppauge,
Spitzer’s request that his name be removed could have been a legitimate trigger for an SAR. But there are some fair questions as to the claims about bribes. Thanks to his father’s real estate fortune, Spitzer is an extremely wealthy man, and his channeling of payments at the level suggested can hardly be viewed as something that raises legitimate suspicion. As money laundering goes, $40,000 to $80,000 is peanuts--not the sort of thing that would normally raise an eyebrow. Here it is not the sum involved that triggered suspicion; it is the person who made the payments. Similarly, the suggestion that these payments might have been bribe payments which were being laundered is absurd. In fact they were payments made by Spitzer, not receipts. The facts offered barely meet a plausibility test. Most significantly, there was no basis to suspect bribery--which is what ostensibly launched the entire probe. Several reports about this case have suggested that it is somehow routine for prosecutors to go through the financial records of public officials to look for evidence of corruption. But in the absence of specific grounds justifying the investigation (for instance, an informant complaining about a bribe) prosecutors have no such authority. In this case, the basis for action is extraordinarily weak. Most importantly, the investigators do not appear to be looking into a crime, they appear to be investigating Spitzer in the hopes of finding something compromising.
The SAR put the matter in the hands of the IRS. In the last six years, the IRS has begun to amass an astonishing record of politically motivated investigations--most recently one targeting Barack Obama’s church.
The IRS, according to the official line, noting that the matter related to a public official, turned it over to the Public Integrity Section (PIN) at the Department of Justice. In theory, PIN exists to avoid an appearance that prosecutions are politically motivated by insuring the application of uniform national standards. Practice at PIN has, however, been difficult to reconcile with theory. PIN has emerged as one of the most highly politicized branches of a highly politicized Justice Department. According to a study done by two university professors, under President Bush PIN has initiated 5.6 cases involving Democrats for every one case involving a Republican. This statistical data strongly suggest that PIN has a habit of aggressively pushing cases on the basis of partisan political criteria.
Considering that the official account shows this was a “routine” examination of bank records, the level of resources allocated to it, including investigators and prosecutors, was lavish. This again suggests a political prosecution. Political direction is rarely overt. It usually takes the form of generous allocation of resources for political targets, and constriction of resources for persons who are politically protected. Clearly, moving the case against Spitzer had become a priority.
Two more questions should be asked about the prosecution. The first is whether a selective attitude is taken in prosecution--that is, whether the Justice Department is treating Spitzer in a manner consistent with other (notably Republican) figures caught in a similarly compromised position. The second is how the matter was broken to the press.
On each of these points, the information now available raises unsettling issues about the conduct of the Justice Department. One close parallel involving a prostitution investigation is the case of the “D.C. Madam.” In that case, federal prosecutors have proceeded against the prostitution ring and have shown little interest in the customer list, which is said to include a former high-ranking Bush Administration official (Randall Tobias, director of the U.S. Agency for International Development) and a U.S. Senator (David Vitter, Republican of Louisiana). The prosecutors’ conduct in the “D.C. Madam” case has been remarkably deferential to the public figures involved. That case cannot be squared with the investigation into Governor Spitzer--it points to a double standard.
Politically abusive prosecutions are almost always marked by media-friendly prosecutors. The essence of political prosecution is less to bag the political prey than to make partisan propaganda by marking the target as “corrupt.” And the accounts published in The New York Times, ABC News, and other media outlets reveal investigators and prosecutors eager to get the details out and on to the public record. (On Friday, a Times reporter received a tip that “Client 9” was “a
Was the Spitzer investigation politically motivated? It’s still too early to say with any assurance, but the facts offered about the case so far raise more questions than they answer. The Justice Department’s response to inquiries may be “trust us.” But it may discover that the reservoir of public trust has been exhausted.
Scott Horton teaches law at