Tuesday, March 11, 2008

Asking the question

From the nanosecond after the New York Times posted its story about Governor Eliot Spitzer’s use of high-priced prostitutes (the story has been repeatedly updated, and, to be honest, only details one interaction, though the implication seems to be that Spitzer was a regular client), tongues were wagging, keyboards were clacking, and thumbs were making whatever noise they do while texting. Everybody had the same outraged, indignant question: What in god’s name was Spitzer thinking?

Well, almost everybody. Well, at least, kind of. . . I’ll explain in a moment.

Here’s what we seem to know: On at least one occasion, New York Governor Elliot Spitzer paid to have sex with a woman who was not his wife. This woman worked for a rather expensive multinational booking service that saw four of its principle operators arrested at the end of last week. Spitzer is not named in the affidavit, but it is generally agreed that he is “Client 9”; there are nine other unnamed clients in the affidavit. The woman that met Spitzer was contracted in New York to travel to Washington DC, where she met Spitzer in a hotel room that Spitzer procured for the encounter under the name George Fox. (George Fox, it turns out, is a real person and a friend of Spitzer’s, but Fox says he had no knowledge of this transaction.)

As of this writing, Spitzer has made a public statement of apology, though he did not specify for what. Rumors are that there is a debate among his family and close advisors over whether he has to resign. If Spitzer resigns, NY Lieutenant Governor David Patterson, a Democrat, assumes the office of Governor for the remainder of the term. New York Senate Majority Leader and Spitzer nemesis Joe Bruno, a Republican, would assume the duties of Lieutenant Governor.

Here’s what else we seem to know: This case was not begun as an investigation of a prostitution ring that then just happened to turn up the name Eliot Spitzer. This scandal (I think we can call it that—it already has a name: The Eliot Mess) began as an investigation of Spitzer:

[IRS] investigators conducting a routine examination of suspicious financial transactions reported to them by banks found several unusual movements of cash involving the governor of New York, several officials said. …

The money ended up in the bank accounts of what appeared to be shell companies, corporations that essentially had no real business.

The transactions, officials said, suggested possible financial crimes — maybe bribery, political corruption, or something inappropriate involving campaign finance. Prostitution, they said, was the furthest thing from the minds of the investigators. …

Because the focus was a high-ranking government official, prosecutors were required to seek the approval of the United States attorney general to proceed. Once they secured that permission, the investigation moved forward.

At the outset, one official said, it seemed like a bread-and-butter inquiry into political corruption, the kind of case the F.B.I. squad, known internally by the designation C14, frequently pursues.

But before long, the investigators learned that the money was being moved to pay for sex and that the transactions were being manipulated to conceal Mr. Spitzer’s connection to payments for meetings with prostitutes, the official said.

What was that suspicious financial transaction exactly? It reportedly was something called “structuring,” which, I am told, is the movement of small amounts of money (under $10,000) that appear designed to obscure the movement of larger amounts (e.g. instead of just moving, say, $10,050, you move $4,000, $2,500, and then $3,550 in some short period of time). This structuring triggered an investigation that showed money moving into a shell company. . . which triggered an investigation of Spitzer for what was believed to be graft of some sort. . . that investigation pulled back the curtain on a “prostitution ring” known as the Emperor’s Club. . . .

That revelation led to a warrant for a wiretap—several wiretaps, actually—on those running the Emperor’s Club. Stories imply that this is a federal warrant.

Those wiretaps are apparently what provide us with the transcripts that include Spitzer’s arrangement to move a woman across state lines for “immoral sex” (that’s the Mann Act talking, not me) on February 13th of this year.

Which brings us to our first problem. Prostitution is usually not prosecuted as a federal crime. It becomes a federal crime when Spitzer contracts to have a New York sex worker meet him in DC. But that didn’t happen until after the warrants were issued—and the Feds presumably only know of this interstate commerce because it was picked up on a tap under those warrants.

The affidavit telling of the alleged crimes of the four prostitution ring leaders include many quotes from the calls surrounding that February tryst. One charge goes to great length to explain that Client 9 wanted to do something “unsafe” with the woman, but that woman had ways of telling her clients that if they wanted to have sex, unsafe wasn’t an option.

Problem number two: having unsafe sex, to the best of my knowledge, is not a crime—state or federal—at least not any more of a crime than having protected sex with a prostitute. (There are a few cases where persons who had AIDS and knowingly set out to infect others have been prosecuted, but that is in no way part of this story.) So, why are these details part of the indictment?

Let’s backtrack just a bit.

This investigation is managed by the Department of Justice’s Office of Public Integrity (I’ve also seen it called the Public Integrity Section of the DoJ). The OPI/PIS, as is noted by Harper’s Scott Horton, has been intimately involved with a scandal of its own concerning “politically directed prosecutions.”

During the Bush Administration, his Justice Department has opened 5.6 cases against Democrats for every one involving a Republican. Beyond this, a number of the cases seem to have been tied closely to election cycles. Indeed, a study of the cases out of Alabama shows clearly that even cases opened against Republicans are in fact only part of a broader pattern of going after Democrats. So here are the rather amazing facts that surface in the Spitzer case:

(1) The prosecutors handling the case came from the Public Integrity Section.

(2) The prosecution is opened under the White-Slave Traffic Act of 1910. You read that correctly. The statute itself is highly disreputable, and most of the high-profile cases brought under it were politically motivated and grossly abusive.

Yes, there’s that darn Mann Act again. (Horton and Digby both detail its long, antiquated, and sordid history.) The problem is, as mentioned, according to the affidavit (at least in Spitzer’s case), that the violation of the White-Slave Traffic Act doesn’t occur until months after the investigation was opened.

In fact, in a different New York Times story related to the Eliot Mess, we read that the call that links Spitzer to a violation of the Mann Act was swept up in a massive trawl:

The conversations, according to the affidavit, were among more than 5,000 telephone calls and text messages that the federal authorities intercepted during the course of the investigation into the prostitution ring, which began last October. Investigators also seized more than 6,000 e-mail messages, bank records, and travel and hotel records, and conducted physical surveillance.

This level of investigation would have to be approved all the way up the chain of command, through the appropriate United States Attorney, to the United States Attorney General.

The US Attorney for the Southern District of New York is Michael Garcia (more on him shortly), but over the course of the last year, we’ve actually had three US AGs—the October start date places approval in the lap of acting Attorney General Peter D. Keisler, who served between the resignation of Alberto Gonzales and the swearing in of Michael Mukasey. Keisler, a cofounder of the Federalist Society, former clerk for Robert Bork and Supreme Court Justice Anthony Kennedy, has been thrice nominated by George Bush to fill a spot on the DC Circuit.

Michael Garcia was an assistant to then US Attorney Mary Jo White during the prosecution of the 1993 Trade Center bombers. In 2003, Garcia, a registered Republican, was tapped to head the INS as it was brought inside the Department of Homeland Security and renamed Immigration and Customs Enforcement (ICE). In 2005, Garcia—whom has been called a “Chertoff crony”—was named as the USA for the Southern District.

Garcia was apparently ready to roll with an indictment of “a public figure” a couple of months ago, but first needed authority granted to him by the Attorney General (now Mike Mukasey). Garcia kept investigating until he was granted that authority—which appears to be normal procedure—but the only references to Client 9 in the Emperor's Club affidavit are all from less than a month ago. I do not have an explanation for this apparent discrepancy.

Oh, but there’s more. . .

I am confused by this revelation in the ancillary NYT story:

Then, with the assistance of a confidential informant, a young woman who had worked previously as a prostitute for the Emperor’s Club V.I.P., the escort service that Mr. Spitzer was believed to be using, the investigators were able to get a judge to approve wiretaps on the cellphones of some of those suspected of involvement in the escort service.

The informant had previously worked for the escort service, but the investigation didn’t turn up the prostitution angle until after Spitzer was being investigated for structuring. . . which seems to indicate that the informant had left the Emperor’s Club before the period that concerns the part of the investigation that involves the governor. It could be that parts of the timeline have yet to be reported, but as I read it, there seems to be something circular about the logic that permits investigators to tie Spitzer to a specific sexual contract.

And, (almost) finally, with all of the talk of Spitzer’s political downfall, and the governor’s fights with Joe Bruno, I thought about the rather substantial—like half-a-million dollars substantial—donation made by New York City Mayor Michael Bloomberg to the state GOP. . . just last week. . . after Bloomberg put an end to rumors about a bid for US president. . . after the state Republicans lost a special election that shaved their Senate majority to one. . . after Bloomberg let slip the idea that he might be something other than president, like, you know, governor. (Jane Hamsher had similar thoughts, among several others.) With the relationship between Bloomberg and Mukasey known to be close, is it at all possible that Mayor Mike heard anything from US AG Mike about a soon to be weakened NY governor?

At this point I should hasten to add that Eliot Spitzer has yet to be charged with anything. None of the clients listed in the affidavit have been charged (and only Spitzer has been linked to a number). Further, if Spitzer is charged with a crime, the reports seem to indicate that it will be for the structuring—trying to conceal financial transactions—rather than anything to do with the actual sex.

Since Spitzer has prosecuted so-called “prostitution rings” in the past, and has made public pronouncements about the morality of such crimes, he is likely guilty of rank hypocrisy, what else he is guilty of remains an open question.

Which brings me back to the beginning: What in god’s name was Spitzer thinking?

When most of the myriad talkers and typers were asking that, they were no doubt thinking: What was Spitzer doing frequenting prostitutes? Is he nuts? He has a wife! He wants to be President! Prostitutes?!?

I suppose that’s a valid question, but, to me, it is not a particularly interesting one.

Here's the thing—I am not really that amazed that an aggressive and powerful politico thought that he could get away with paying for sex. Spitzer is hardly the first, and he will certainly not be the last. The morality of this behavior can be debated, but the originality of it cannot.

But here’s what I am amazed by: I am amazed that a Democrat—no, let’s make that any Democrat—thinks that he or she can do anything on the sly and keep it secret these days.

I actually have to wonder, as I've wondered before, if elected Democrats realize that issues like the US Attorney scandal and warrantless surveillance are not just inside baseball, not just about a debatable difference of opinion on the balance to strike between security and civil rights, but are rather about Republican attempts to lock in one party rule.

Does Spitzer or any of the Democratic Party leadership really believe that their calls and e-mails are not being monitored? Ten years ago, maybe I would have broken out the tinfoil hats, but now, after all we know? C'mon!

What in god’s name was Spitzer thinking?

(cross-posted on The Seminal and Daily Kos)

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