Prosecutors' Selective Enforcement

SDNY Blows Eliot Spitzer a Kiss
Simple Justice by SHG - November 7, 2008

With a change in administration usually comes a change in the United States Attorney, and the Southern District of New York is no exception. Rather than leave loose threads, the current holder of the office, Michael Garcia, has chosen to close the door on a sordid chapter of New York history, the Eliot Spitzer scandal.

Don't, I repeat, Don't expect this to happen for you. The SDNY never announces that it will not be prosecuting someone. They did it for Spitzer.

Newsday and the New York Law Journal are reporting that Spitzer was not to be prosecuted. This comes from one of the most unique documents I've ever seen, a press release issued by Michael J. Garcia to announce a non-prosecution. Even the title of the release, which invariably names the target of government scrutiny, makes no mention of its subject. Instead, it demurely says, "Statement of United States Attorney Michael J. Garcia." Gee whiz, I wonder what that's about?

The release offers a few interesting insights about the government's decision not to pursue Spitzer:

ELIOT SPITZER has acknowledged to this Office that he was a client of, and made payments to, the Emperors Club VIP. Our investigation has shown that on multiple occasions, Mr. SPITZER arranged for women to travel from one state to another state to engage in prostitution. After a thorough investigation, this Office has uncovered no evidence of misuse of public or campaign funds. In addition, we have determined that there is insufficient evidence to bring charges against Mr. SPITZER for any offense relating to the withdrawal of funds for, and his payments to, the Emperors Club VIP.
First, that Spitzer admitted violating the Mann Act, and then the release says absolutely nothing further on the subject. Now some might argue that the Mann Act is old school, and nobody gets prosecuted for that anymore. Yeah? Tell that to ex-Judge/Jester Ronald Tills. Apparently, word of this benevolence never made it to the Western District of New York.

Next, Spitzer was cleared of using public or campaign funds. Huh? No one ever suggested that Spitzer, a multimillionaire by way of his father's real estate holdings, had his finger in the public till. This is a red herring.

And finally, that "there is insufficient evidence" as to "any offense relating to the withdrawal of funds for, and his payments to, the Empire Club VIP." Now this is where it gets dicey. He's not cleared, but he's cut loose under the "insufficient evidence" claim. Notably, there's no mention that it's insufficient evidence of "money laundering." Those words are never mentioned.

But more curious is that money laundering is perhaps the singular easiest crime to prove under these circumstances because it's simply a matter of following the money. To state that the evidence is insufficient is bizarre. Either it was shifted or it wasn't. Either he did it or he didn't. Insufficient evidence? Please.

Garcia sums it up in this curious passage:

"In light of the policy of the Department of Justice with respect to prostitution offenses and the longstanding practice of this Office, as well as Mr. SPITZER's acceptance of responsibility for his conduct, we have concluded that the public interest would not be further advanced by filing criminal charges in this matter."
Had this been merely an issue of prostitution, perhaps this statement wouldn't smell so disingenuous. But the prostitution angle was only the obvious, most sordid, part of the problem. So many other aspects of this matter are common fodder for the government, and result in a prosecution as predictably as the sun rises each morning. As for Spitzer's "acceptance of responsibility," since when does the government mind kicking a man when he's down? Hey, that's what they do best. They have so much experience at it.

My issue isn't with the government's handling of this matter. Giving Spitzer a pass on this one doesn't offend my sensibilities, and seems a fine exercise of discretion. My issue is that no one else will ever be the beneficiary of such kindness from the Southern District, not only getting a free ride on the admitted Mann Act violation if not the laundering, but their very own press release to announce a non-prosecution.

If only this was the way it worked for everybody.