Dershowitz on Spitzer

In the deluge of commentary on the Spitzer scandal, I thought this piece by Alan Dershowitz in the Wall Street Journal was the best. As he says, what we know of the investigation so far is very odd—not as odd as Spitzer’s behavior, I grant you, but strange nonetheless.

There is no hard evidence that Eliot Spitzer was targeted for investigation, but the story of how he was caught does not ring entirely true to many experienced former prosecutors and current criminal lawyers. The New York Times reported that the revelations began with a routine tax inquiry by revenue agents "conducting a routine examination of suspicious financial transactions reported to them by banks." This investigation allegedly found "several unusual movements of cash involving the Governor of New York." But the movement of the amounts of cash required to pay prostitutes, even high-priced prostitutes over a long period of time, does not commonly generate a full-scale investigation...

In this case, if the serendipitous bank audit really led federal agents to Mr. Spitzer, and Mr. Spitzer led them to the Emperor's Club, and federal prosecutors really wanted to get the Club, they could easily have sent an undercover cop to pose as a john, instead of tapping phones and reading emails -- tactics designed to catch and embarrass Mr. Spitzer with his own recorded words, which could be, and were, leaked to the media. As this newspaper has reported: "It isn't clear why the FBI sought the wiretap warrant. Federal prostitution probes are exceedingly rare, lawyers say, except in cases involving organized-crime leaders or child abuse. Federal wiretaps are seldom used to make these cases . . ."

What exactly were the Feds investigating in the first place, and why? Summing up, Dershowitz quotes Beria, I think aptly:

Lavrenti Beria, the head of Joseph Stalin's KGB, once quipped to his boss, "show me the man and I will find the crime." The Soviet Union was notorious for having accordion-like criminal laws that could be adjusted to fit almost any dissident target. The U.S. is a far cry from the Soviet Union, but our laws are dangerously overbroad.

Both Democrats and Republicans have targeted political adversaries over the years. The weapons of choice are almost always elastic criminal laws. And few laws are more elastic, and susceptible to abuse, than federal laws on money laundering and sex crimes. For the sake of all Americans, these laws should be narrowed and limited to predatory crimes with real victims.

This is one reason I find the chorus of exultation over Spitzer’s downfall hard to take. Another is that it is wrong in any case, in my view, to criminalize prostitution—a victimless crime if ever there was one. But having said all this it is difficult to summon much sympathy for the man. You could never accuse Spitzer of having exercised restraint in his use of broadly framed laws, not to mention the awesome and largely unchecked powers of his office, to coerce his targets into submission without the nuisance of a trial. He was on the right side of a lot of the investor-protection issues he chose to champion as a prosecutor, I think, but still by word and deed he always struck me as a tyrant. It is dangerous to trust that kind of man with that kind of power. It is still a great shame that it took this to stop him in his tracks.

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