Spitzer "casts himself not just as an enforcer of the law per se, but also as an enforcer of a broader social compact"

The quote in the title of this post comes from a 2005 article in the New York Times Sunday Magazine on "Spitzerism" as a law enforcement philosophy. It was written by The New Republic's Noam Scheiber. In response, I posted here to agree with Scheiber that Eliot Spitzer, a rising-star Democrat who was at that time New York State's showboat Attorney General, had certainly never acted as though he was constrained by mere "law per se." But I ridiculed Scheiber's contention that such "qualities" made Spitzer an attractive candidate for national office on a Democratic ticket. I pretty much want my prosecutors and attorneys general to stick to "law per se." It seemed to me that Scheiber's heroic notion of "Spitzerism" was pretty much a code word for "unscrupulous and overambitious prosecutor running amok (mostly against Republican targets)."

Today it was announced, however, that now-New York State Governor Eliot Spitzer, whose administration has already been tarnished by assorted scandals, was involved with (at least as a client of) a now-federally indicted international prostitution ring. His involvement with the ring was apparently sufficient that he had a credit balance on his account with them — the precise size, and the offset of which against new charges, he's apparently quoted (as "Client-9") arguing about by phone with the ring operators in an affidavit attached to the just-unsealed federal criminal complaint. It thus seems likely that Spitzer himself has, at a minimum, violated the "law per se" of New York and/or Washington, D.C. against contracting for sex from prostitutes, although he has not yet himself been charged with any crime.

There's also a suggestion that he paid for a prostitute's train ticket to travel from New York to Washington for their tryst. So in addition to the underlying offense of violating state anti-prostitution laws, it's not inconceivable that Spitzer himself could be charged, either as a principal or co-conspirator, with violating the federal Mann Act and the federal wire fraud statute. As a former state attorney general and, before that, a prosecutor on the staff of Manhattan District Attorney Robert M. Morgenthau specializing in organized crime rings, he could not have been unaware of the likelihood of connections between an international prostitution ring like this one and other, more sinister organized crime operations. He could not have been unaware of the possibility that he might be subjected to blackmail attempts. The Governor of New York simply can't expect to be an "anonymous john."

Were I Czar, I would decriminalize the exchange of money for sexual favors among genuinely consenting adults. But I'm not, and the legislative bodies that make the laws applicable to Spitzer's conduct haven't decriminalized that conduct either. His transgressions occurred while he was an elected public official — indeed, the chief executive branch official of the State of New York, who had sworn an oath upon taking office to uphold and enforce the laws of that state.

He has not yet resigned; his very short afternoon news conference was just a vague announcement of unspecified failings and an apology, after which he took no questions. I don't interpret that as necessarily evidencing an intention to hunker down, Larry Craig-style, to try to ride out the storm. Rather, I note that unlike most vice cases (which typically are brought by state prosecutors in state courts solely under state law), this is a federal criminal case, in which Spitzer is at least a potential witness with respect to charges against the existing defendants. Perhaps the interstate nature of the ring explains the federal involvement by itself, but I wonder whether there's way more to this story — and specifically, to Spitzer's involvement in it — than his simply being an "ordinary client" of the ring. So far, the feds have spared him the indignity of a perp walk in cuffs, but that doesn't mean one's not coming. The New York Sun reported that these particular federal prosecutors are from a unit "specializing in government corruption cases". I speculate — and, in fairness, I emphasize that this is nothing more than my uninformed speculation, just a gut hunch — that there's another shoe (or boot or anvil) that we haven't heard drop yet.

Whether it's on the potential federal charges mentioned above, or something much less savory and much more culpable than money for sex across state lines, my guess is that Spitzer's lawyers are already in plea negotiations with the federal prosecutors, and that one component of a plea deal under discussion would include his resignation. Resigning, in other words, may be inevitable, but if he is himself a potential target of criminal prosecution and he announces it before plea negotiations are exhausted, it loses its value for that purpose. If, by contrast, he were relatively sure that he's not himself a potential target of prosecution, and he'd already made a decision to hunker down, I would have expected him to announce that today, to get it all over with at once before going "to the mattresses."

Spitzer's self-righteousness, egotism, and overweening ambition have earned him many enemies. Earlier today I heard legal pundit Greta Van Susteren on Fox News say something to the effect that Spitzer is "hated on Wall Street" because he's tried to "clean up the corruption there." But not all, nor even most, of Wall Street is involved in corruption, and Spitzer is hated by many who are themselves squeaky clean. He's been a class warrior, demonizing not just corrupt businessmen but businessmen and their businesses in general. Tonight, toasts will be drunk to his political demise, and cigars will be metaphorically lit from the bonfire of his career. It's hard for me to imagine that there are many fellows who are more deserving of that scorn and schadenfreude.

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UPDATE (Mon Mar 10 @ 7:30pm): ABC News reports (h/t TPM) that the "federal investigation of a New York prostitution ring was triggered by Gov. Eliot Spitzer's suspicious money transfers, initially leading agents to believe Spitzer was hiding bribes, according to federal officials," and that Spitzer

is likely to be prosecuted under a relatively obscure statute called "structuring," according to a Justice Department official.

Structuring involves creating a series of financial movements designed to obscure the true purpose of the payments.

This suggests Spitzer was taking out big chunks of cash — consistent with the impressive fees reportedly charged by these high-dollar callgirls — in chunks of more than $5k but less than $10k in an attempt to avoid the paperwork that banks must file for large cash transactions. I've read elsewhere that Spitzer has family money, so that even on a public servant's salary, he probably could finance this habit without needing bribe money. Also per the same ABC News report:

It was only months later that the IRS and the FBI determined that Spitzer wasn't hiding bribes but payments to a company called QAT, what prosecutors say is a prostitution operation operating under the name of the Emperors Club.

That sounds pretty plausible to me. If there were no other organized crime connections, that's the kind of crime that might well result in a no-prison time recommendation and sentencing calculation for a first offender pleading guilty and cooperating. Various other press and blogospheric sources are now reporting that Spitzer is likely to formally resign tonight — and the time difference between his afternoon press conference, which was necessary to address an imminent NYT story, and a resignation tonight would represent about the right amount of time for the lawyers to sew up the paperwork for a formal plea agreement that includes his resignation.

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UPDATE (Mon Mar 10 @ 9:30pm): The statute referenced in the ABC News report is almost certainly 31 U.S.C. § 5324. A quick Westlaw check suggests that it's never produced any reported decisions, which doesn't much surprise me. Certainly as a former prosecutor of organized crime defendants (including money launderers), Spitzer would have known that cash transactions trigger requirements for banks (under 31 U.S.C. § 5313(a), which (along with its implementing regulations, see, e.g., 31 C.F.R. §§ 103.18 & 103.22) require banks and other financial institutions to file "Suspicious Activity Reports" with the Treasury Department for suspicious transactions of $5k+, and for almost all currency transactions of $10k+. Without aggravation, it looks like the penalty tops out at 5 years plus a fine, but that would presumably be per count, and the nature of the crime suggests it was likely to have been repeated. That suggests to me that there is lots of room for prosecutorial discretion in charging, and likewise lots of flexibility on potential pleas.

I don't see any interpreting cases for section 5324 in a quick check of Westlaw (which doesn't surprise me), and I'm far from expert in this field of white collar criminal law — but Spitzer certainly may be deemed to be one, given his background of prosecuting money laundering! Anyway, as I read it, section 5324 basically makes it a crime to deliberately structure your transactions to avoid getting on those radar screens — intent being the key element of proof. Absent a confession, the prosecution would typically have to prove intent circumstantially, however. If there are financial records from which lots of large (but slightly under-limit) withdrawals correspond closely in time and cumulative amount to what the callgirl ring's receipts show from Spitzer, that would be a fairly compelling circumstantial case. To beat it, Spitzer would effectively have to come up with some other very convincing explanation for the size and purpose of the transactions.

Frankly, a "money laundering"-type charge would be far sexier, and far more likely to be actually charged in these circumstances, than a "mere" Mann Act or wire fraud charge predicated directly on the prostitution. That is, if that's the prospective charge, then it's much harder for Spitzer to defend — either in a court of law or the court of public opinion — on the basis that "this is all really only about consensual adult sex," or even "only about lying about sex."

Meanwhile, federal prosecutor WLS, guest-blogging at Patterico's and linking the same ABC News report, opines that "the facts suggest to me that Spitzer has received a target letter indicating that he is the target of a federal criminal investigation for his conduct." If so, he says, "his problems are a lot bigger than first seemed the case." Criminal defense lawyer and blogger Jeralyn Merritt at TalkLeft reports that Spitzer is  being represented by NYC mega-firm Paul, Weiss (not a big surprise), and that a NYC television station is reporting that Spitzer's resignation may come tomorrow. She and her commenters are also speculating on what kind of plea deal may be brewing. Among other things, she's curious about the fact that this was filed as a complaint, rather than an indictment from a grand jury, and there's some discussion in the comments about the specific regulations that might be implicated.

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UPDATE (Tue Mar 11 @ 2:20am): So how important were these trysts to Gov. Spitzer? This paragraph, from Tuesday's WaPo, is equal parts funny and sad (emphasis mine):

Spitzer's travel schedule shows he spent the night of Feb. 13 in Washington to attend a congressional hearing the next day, Valentine's Day. Spitzer was not initially scheduled to appear at the hearing on the state of the bond industry, held by the Financial Services subcommittee on capital markets, insurance and government-sponsored enterprises. But committee staff members said Spitzer called to insist on coming to testify, and they ended up pushing back the New York insurance superintendent to make room for the governor's last-minute appearance.

What better alibi to prove the need for an overnight trip than a room full of bored Congressmen, aides, industry lobbyists, and the Congressional Record? Meanwhile, WaPo's Dana Milbank chips in for the First Lady of the Empire State:

The woman accused of running a prostitution ring allegedly patronized by Eliot Spitzer told one of her call girls that the New York governor had been known to "ask you to do things that, like, you might not think were safe."

But whatever Spitzer — or, in the language of a federal court filing, "Client-9" — did with a petite brunette nicknamed "Kristen" on the eve of Valentine's Day last month at Washington's Mayflower Hotel, it probably wasn't as monstrous as what he asked his wife to do yesterday.

In the grand tradition of Larry Craig, David Vitter and Jim McGreevey, Spitzer dragged his partner of 21 years before the television cameras at his offices in New York to announce that he was "disappointed" in himself for unspecified sins.

Despite more colorful speculation, my guess about the "not safe" past requests is that they were requests for unprotected ("bareback") sex without a condom. Smart call-girls — heck, smart anyone — should know better than that, and it fits the escort's quoted reply, but it's exactly the sort of thing a white-bread 48-year-old rich boy with a self-destructive streak might well demand. On the subject of his wife and daughters: I don't lack sympathy for them, particularly the daughters; but it's not the world who owes them an apology, it's Eliot Spitzer.