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Friday, March 14, 2008

With "friends" like this on his defense team, no wonder Spitzer continues to be delusional

Today's New York Times reports that "[f]ederal prosecutors are investigating whether Gov. Eliot Spitzer used campaign funds in connection with his meetings with prostitutes, including payments for hotels or ground transportation."

The story is moderately interesting, if not surprising, insofar as it reports the basis for the feds' interest. But what I did find very surprising is the leaking about the case — some of which seems to be coming from the feds, but at least some of which is obviously being done by the Spitzer legal team or someone on their side — and in a bush-league way that also recklessly jeopardizes their ability to preserve attorney-client privilege for their most private conversations with their client!


It starts off pretty mildly, with this paragraph:

[Paul Weiss partner, Spitzer classmate, and defense attorney Michele] Hirshman spent several hours at the United States attorney’s office in Manhattan on Tuesday listening to evidence that prosecutors had amassed during their six-month inquiry. Ms. Hirshman, who was Mr. Spitzer’s deputy in the attorney general’s office, has also worked in the United States attorney’s office for the Southern District of New York. While in that office, her posts included service as the chief of the Public Corruption Unit.

"Hmm," I thought on reading that. "That must have been an interesting session." Most likely it was in the nature of an extreme professional courtesy — a constructive display of respect by current prosecutors for a former prosecutor, and a good example of the kind of "small world, isn't it?" personality lubricant that can indeed cause the wheels of justice to turn more smoothly, in the interests of both the public and the defendant. If the feds, to use a crude trial lawyer colloquialism, already have Spitzer "by the short hairs," then laying out their case to his lawyer (who, from that career history, one would expect to have the chops to evaluate that presentation appropriately) would certainly be likely to induce cooperation from his team. Compromises — be they plea bargains or be they shorter-term events like resignations — are more likely when most of the cards are on the table and each side can evaluate the strengths and weaknesses of its own case and its opponent's. In fact, there's a whole nuther NYT story today about just how use to Spitzer's defense the credibility of Ms. Ms. Hirshman may be.

These details struck me as something likely leaked by the prosecutors. It probably was intended to help explain, inferentially, the significance of Spitzer's resignation on Wednesday, and the U.S. Attorney's press release shortly thereafter confirming that there had been no deal reached — notwithstanding someone in the Spitzer camp's ridiculous bluster to the Wall Street Journal on Tuesday afternoon or evening to the effect that Spitzer was insisting upon an assurance that no charges would be filed in exchange for resigning.


But then the next paragraph in the NYT story is something that has to have come from the Spitzer camp, and it leaves me smacking palm to forehead and saying, "What can they possibly be thinking?"

A person with knowledge of [Hirshman's] meeting with Mr. Spitzer on Tuesday said that she had asked him whether he had ever used public money, or campaign money, in any visits with escorts, and that he said he had not.

Hello? Reckless waiver of attorney-client privilege, anyone? Either the NYT reporters completely fabricated this only partially attributed statement — which, despite all their bias and screw-ups from time to time, is not the sort of stunt NYT reporters typically pull — or someone who was high up enough to be in the room and listening to Spitzer's privileged discussions with Hirshman has just deliberately disclosed, directly or through an intermediary, the substance of their key communications to the entire world.

I don't care if he or she is a high-powered top-credentialed white collar criminal defense lawyer from a top-flight New York law firm, or a Harvard law grad who once practiced mergers and acquisitions law at another top-flight New York law firm (before going mommy/foundation/First Lady-track), or who else it might have been who was in that room who then became the source of this leak. Only a complete and utter fool of a lawyer would deliberately waive attorney-client privilege on this conversation, and then place in the hands of newspaper reporters the responsibility for keeping the prosecution from demonstrating and exploiting that waiver. Oh yeah, your Judith Miller-types may be willing to spend a few weeks in jail to protect the identities and details of their "confidential sources." And there are ways to leak more obliquely, to make the same point without purporting to disclose the exact substance of the privileged conversation directly from the defendant's own mouth. But as a criminal defense lawyer, or even just someone with access to the inside details of the criminal defense team, when it's your client's potential freedom or incarceration at risk, you cannot ethically — or even sanely — put your entire trust on someone like newspaper reporters who are outside your control!

If push comes to shove, if the feds decide they'd like to cross-examine, say, Ms. Hirshman on every other detail of that particular no-longer-privileged conversation with her client Eliot Spitzer, and to seize, examine, and photocopy her notes from it, then this news leak gets them at least half-way home in establishing a deliberate waiver, such that they could thereafter, for example, subpoena Ms. Hirshman to appear before a grand jury to compel her testimony and production of documents there. (And because the pending case was originally filed as a complaint against the call-girl ringleaders, not an indictment against either them or Spitzer, there's still a very good chance that a grand jury either is or will be gathering evidence.)

In fact, I doubt the feds will pursue that path. To thoroughly prove up the waiver, the feds would need to negate the possibility that the NYT reporters made this up, and probably to get the reporters to identify their source and repeat under oath what the source told them. But forcing the reporters to identify their confidential source and to testify about what he told them would require the feds to first jump through a huge set of hoops under DoJ regs that approximate state shield laws protecting this "reporter's confidential source privilege." They'd essentially have to show that the testimony they're seeking is essential and that there's no other way to get it, which is a deliberately hard showing to make. And frankly, it doesn't sound like they need a windfall from a blown privilege to continue staying eleven steps ahead of their opponents.

But this game by someone on the defense team, or maybe by the defendant himself — leaking to set up a news report that "We at the NYT have it on good authority from our confidential source on the defense team that the defendant has sworn up and down to his own lawyers that he's innocent" — is just reckless in the extreme. Reckless in the same way as ... Oh, gosh, let me struggle to find an apt comparison. How about: As reckless as a married, father-of-three, large-state governor pleading for the opportunity to have unprotected sex with someone he knows to be a prostitute?


But wait, there's more!

A person close to Mr. Spitzer said that prosecutors told Ms. Hirshman this week that they would be more inclined to pursue a criminal case against Mr. Spitzer if he remained governor because of the violation of public trust.

"The message was, 'We’d be less inclined to press a case if he’s just a private citizen,'" a friend of Mr. Spitzer's said in a telephone interview Wednesday night....

A friend of Mr. Spitzer’s, who spoke on condition of anonymity, reacted with fury at the news that prosecutors appeared to be widening their inquiry to include money spent on campaign trips that may have involved trysts with prostitutes.

"At some point, this becomes piling on," the friend said. The friend said that he would be stunned if "a judge or jury would convict a man for something like this. It's very low grade," adding, "Why would prosecutors pursue this?"

Are you following this? Spitzer camp leaks on Tuesday night to the WSJ that "He won't resign unless the feds agree there will be no charges." In the meantime the feds are showing Hirshman at least some, maybe a lot, of their hole cards. The Spitzer camp promptly capitulates on Wednesday morning, and he resigns without a deal. And then that night and the very next day, the Spitzer camp is repeatedly waiving attorney-client privilege while kvetching about how the prosecutors are being big meanies for "piling on"!?! Didn't they hear him say at his press conference that he's already begun to "atone" for his "private failings"? Why, how dare the feds continue to investigate whether Spitzer was stealing from his campaign treasury or his gubernatorial expense accounts to finance his whore-mongering! Piffle! What judge or jury could care about that?


Spitzer's own history as Attorney General was, of course, filled with selective and highly incriminating leaks of supposed "facts" that often amounted to no more than unproved, unprovable innuendo. And more often than not, even though nominally directed at large corporations or business interests, it was intensely personal — the criminal politics of personal destruction, one might say, designed to humiliate and then force highly symbolic corporate leaders, typically CEOs, from their positions. I suppose if that's your framework for thinking about "justice," then you might project that onto other, more legitimate prosecutors. "They've got my scalp," Spitzer (and wife? certainly someone else on his team) may be thinking, "Isn't it time for them to move on to their next target and their next press conference now? Whazamatter with these guys, don't they want to run for governor some day?"

My hunch is that there's an extreme amount of cognitive dissonance right now somewhere in the Spitzer team. My hunch is that the prosecutors' real attitude on the whole resignation issue was very much like how federal prosecutor WLS, commenting from the other side of the country at Patterico's this week, described what his own reaction would be to a demand by Spitzer that all charges be dropped in exchange for his resignation:

I'm sure the events of yesterday [i.e., Tuesday] were filled with efforts by his attorneys to get a deal, but what motivation is there for the feds to bargain with him about something that 1) they have no interest in and 2) he can’t hold onto anyway?

My response would have been "Your future as the governor of NY is between you and the voters of NY. Act as you think you must."

As for his future as a defendant, I’d have told him the offer is "Three level reduction and recommendation for bottom of the guidelines — just like everyone else — or I’ll see you in court."

He likely went behind closed doors and his former AUSA defense attorney told him "You’re screwed."

But if so, whoever's doing the current leaking and whining to the NYT nevertheless apparently chose to hear "You're screwed!" instead as: "They say they're thinking about cutting you some slack, Eliot, if you'll go ahead and resign without a deal." And now, in a high-society, candy-assed sort of way, Team Spitzer is feeling cheated, betrayed, very unfairly put upon, and highly miffed by this "very low grade" conduct of the prosecutors. (I'm sorry, I know calling someone "candy-assed" is crude, but I just can't think of any other adequate term to describe the kind of lawyers who'd whine that way themselves, or who would permit (ahem) "a friend" to do so on behalf of the team.)


So my question for today is this: Given that Eliot Spitzer is obviously delusional himself, does anyone on his team have a grip on reality? Do they understand the difference between (a) federal court criminal proceedings, (b) Upper East Side cocktail party conversation, and (c) kindergarten?

What's next — a Larry Craig-type "Well I said I was going to resign on this coming Monday, but now it's Monday and I'm not really going to resign, and nyah-nyah, you can't make me"?

Posted by Beldar at 05:18 AM in Law (2008), Politics (2008) | Permalink


Other weblog posts, if any, whose authors have linked to With "friends" like this on his defense team, no wonder Spitzer continues to be delusional and sent a trackback ping are listed here:

» Spitzer endnotes from Overlawyered

Tracked on Mar 18, 2008 10:55:38 AM


(1) nk made the following comment | Mar 14, 2008 9:46:19 AM | Permalink

Very good, Beldar. For my two cents, prosecutors and defense attorneys "pretry" their cases too. Maybe not as much as civil attorneys and there are rules that severely limit the participation of the court, but a lot. And if there is one thing that will cut off this "shmoozing", it is if one party thinks that it is subsequently "backdoored". That the other side is using their conversation to gain an unfair advantage either with the court or with the public. (I was guilty of this myself once, but I was very young and learned my lesson and it stayed only once.)

I would add that there is an "extreme professional courtesy" when it comes to attorney-client communications. Attorneys will go out of their way not elicit any from their opponents even inadvertently. I was called as a witness in a case involving a former client and was asked a question, by "the other side's" attorney, whose answer I could only know through conversations with my client. The judge told me, in a very nice, courteous and patient way, that I was there only as a witness and could not interpose objections. Nonetheless, the other attorney stopped that line of questioning.

(2) hunter made the following comment | Mar 14, 2008 10:43:35 AM | Permalink

It is very humbling and highly educational to see just how terrible things can very quickly get.
Spitzer's experience is particularly instructive because the basis of his reputation has been his public and dramatic attacks on citizens over much less than his exposed crimes.
That said, I find it disgusting that the other criminals in this - the prostitute and her co-workers- are for some becoming popstars. They are anything but.
In many ways, this case reflects badly on all of us.
A return to true morality is the only cure for this kind of debacle.

(3) Scott made the following comment | Mar 14, 2008 12:20:47 PM | Permalink

Regarding the leak of the conversation between Spitzer and his legal team:

Is it possible a top aide or some such was in the room, and that's who leaked it? Since the Aide wouldn't be the client, wouldn't thier very presence be considered a waiving of Privilege, thus making everything said with the Aide in the room fair game for the prosecution?

(4) Antimedia made the following comment | Mar 14, 2008 5:50:38 PM | Permalink

"A return to true morality is the only cure for this kind of debacle."

I'm afraid we're well past the point of turning back on that one. The public has come to expect, and even excuse, this sort of behavior from our politicians and thinks nothing of re-electing the scoundrels.

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