By Pejman Yousefzadeh Posted in Karma Is A [EXPLETIVE DELETED] | Kneel Before Zod | Law | Rooting For Injuries | Spitzmas — Comments (7) / Email this page » / Leave a comment »
Yes, I stole the title from somewhere else on the Web, but it seems to work for our purposes. In any event, it is finally over. And while I have a lot of sympathy for Eliot Spitzer's family, I don't have all that much for him. In fact, I daresay that this is karma at work.
Mind you, I am not a prude--though breaking the law is breaking the law. But what is especially noteworthy about all of this is the fact that Eliot Spitzer is being raked over the coals in much the same manner that he raked others over the coals when he was Attorney General for the State of New York. Only, the U.S. Attorney dealing with this case is actually being far nicer to Spitzer than Spitzer was to many of the people he persecuted.
Yes, that's right. I wrote "persecuted." Not "prosecuted." "Persecuted." There is a reason for this.
Read on . . .
Let's start by examining Spitzer's favorite weapon against Wall Street: the Martin Act. Here is a description of the power that can be wielded through the Act:
The purpose of the Martin Act is to arm the New York attorney general to combat financial fraud. It empowers him to subpoena any document he wants from anyone doing business in the state; to keep an investigation totally secret or to make it totally public; and to choose between filing civil or criminal charges whenever he wants. People called in for questioning during Martin Act investigations do not have a right to counsel or a right against self-incrimination. Combined, the act's powers exceed those given any regulator in any other state.
(Emphasis mine.) You remember all those people who bemoan and decry the supposed assault on our civil liberties during the Bush Administration, right? Yeah, those people. Funny thing; those same people cheered Eliot Spitzer on as he used the Martin Act on his prey, denied them the right to counsel when he questioned them and took away their Fifth Amendment rights during the course of the questioning as well.
Let that sink in.
Now for the scary part: To win a case, the AG doesn't have to prove that the defendant intended to defraud anyone, that a transaction took place, or that anyone actually was defrauded. Plus, when the prosecution is over, trial lawyers can gain access to the hoards of documents that the act has churned up and use them as the basis for civil suits. "It's the legal equivalent of a weapon of mass destruction," said a lawyer at a major New York firm who represents defendants in Martin Act cases (and who didn't want his name used because he feared retribution by Spitzer). "The damage that can be done under the statute is unlimited."
(Emphasis mine.) Yeah, tell me about it. Imagine if you were a Wall Street target of Spitzer's. He has no evidence that you intended to defraud anyone. He has no evidence that anyone was defrauded. He doesn't even have any evidence that a transaction took place. And yet, thanks to the Martin Act and thanks to massive abuses of prosecutorial discretion, Eliot Spitzer could come after you with a vengeance.
I use the word "vengeance" deliberately. Here is why:
. . . Consider the report in the wake of a 2005 op-ed in this newspaper by John Whitehead. A respected Wall Street figure, Mr. Whitehead dared to criticize Mr. Spitzer for his unscrupulously zealous pursuit of Mr. Greenberg. Mr. Spitzer later threatened Mr. Whitehead, telling him in a phone call that "You will pay the price. This is only the beginning and you will pay dearly for what you have done." Some months later, after more Spitzer excesses, Mr. Whitehead had the temerity to write another op-ed describing what Mr. Spitzer had said.
Within a few days, the press was reporting (unsourced, of course) that Mr. Whitehead had defended Mr. Greenberg a few weeks after a Greenberg charity had given $25 million to the World Trade Center Memorial Foundation -- a group Mr. Whitehead chaired. So Mr. Whitehead's on-the-record views were met with an unsourced smear implying bad faith. The press ran with it anyway.
In 2005, Mr. Spitzer went on national television to suggest that Mr. Greenberg had engaged in criminal activity. It was front-page news. About six months later, on the eve of a Thanksgiving weekend, Mr. Spitzer quietly disclosed that he lacked the evidence to press criminal charges. That news was buried inside the papers.
And of course, even in the past, Spitzer's hypocrisy was incredible:
What makes this history all the more unfortunate is that the warning signs about Mr. Spitzer were many and manifest. In the final days of Mr. Spitzer's run for attorney general in 1998, the news broke that he'd twisted campaign-finance laws so that his father could fund his unsuccessful 1994 run. Mr. Spitzer won anyway, and the story was largely forgotten.
Note as well the fact that Spitzer's record as a successful prosecutor was entirely overblown:
On the substance, his court record speaks for itself. Most of Mr. Spitzer's high-profile charges have gone up in smoke. A New York state judge threw out his case against tax firm H&R Block. He lost his prosecution against Bank of America broker Ted Sihpol (whom Mr. Spitzer threatened to arrest in front of his child and pregnant wife). Mr. Spitzer was stopped by a federal judge from prying confidential information out of mortgage companies. Another New York judge blocked the heart of his suit against Mr. Grasso. Mr. Greenberg continues to fight his civil charges. The press was foursquare behind Mr. Spitzer in all these cases, and in a better world they'd share some of his humiliation.
All hype, but where was the beef? The answer: There was none. People wonder how a smart former Attorney General could have forgotten all of the ways in which he could have been caught by other prosecutors. The answer may be that Spitzer was a showboater before he ever was a lawyer. He mugged for cameras but didn't do the legwork necessary to be a successful and respected prosecutor. For all of the glittering star power he brought to the table, he never really learned how to be a good prosecutor. Maybe that's why it was so easy for him to be found out by prosecutors who really are good at their craft, prosecutors with whom Spitzer is now reduced to bargaining for his freedom and his good name.
Oh, and in the event that you think the abuses stopped when Spitzer stopped being the Attorney General and started being the Governor, well, think again:
Mr. Spitzer seemed to excel only in the zeal with which he would go after perceived adversaries. Last summer, his staff infamously used the state police to track the movements of Joe Bruno, the Republican president of the state senate, in an effort to destroy his career. Mr. Spitzer then ferociously fought investigators who wanted to examine his office's email traffic for evidence the governor himself may have been involved. His approval rating in New York, a strongly Democratic state, fell to 27%.
Despite that wakeup call, months after the Bruno incident Mr. Spitzer called up a close ally of New York City Mayor Michael Bloomberg. This source told me that the governor asked him to deliver what the ally considered a threatening and insulting message to the mayor. The Bloomberg confidant, who like many sources commenting on Mr. Spitzer refused to be named, advised the governor to reconsider if that was the message he really wanted to send, but the governor insisted.
Again, do remember that the people applauding this kind of behavior are also the same people who think that vampires and zombies will emerge from the darkness at the mere mention of the name "Karl Rove." And I can't resist noting that given Spitzer's abuse of statutes like the Martin Act, the following should come as no surprise whatsoever:
Mr. Spitzer cloaked his naked devaluation of the rule of law with gauzy rhetoric that was perfectly pitched to make many liberals ignore his strong-arm tactics. He harshly criticized advocates of judicial restraint such as Antonin Scalia as believing in "a dead piece of paper." In a Law Day ceremony, Mr. Spitzer was blunt: "I believe in an evolving Constitution. . . . A flexible Constitution allows us to consider not merely how the world was, but how it ought to be."
Yeah, nothing like perverting the written text of the law to suit your own policy preferences, eh? Really, I couldn't write a villain this bad if I tried and if you paid me gobs and gobs of money to do it.
Spitzer was almost universally praised as a brilliant policy wonk whose grasp of substance was utterly admirable and who possessed a command of facts and philosophy that was broad and deep. But you really wouldn't get that impression if you read some of the things he said when it came to policy issues:
He was vague as to just what his Brave New World would look like. "One of the things that I enjoy about going to Washington is the opportunity of testifying, chapter after chapter, that self-regulation has failed," he said to reporters, adding, "What is it to be replaced with? I'm not sure."
The great Democratic Speaker of the U.S. House of Representatives, Sam Rayburn, once said "Any jackass can kick down a barn door. It takes a carpenter to build one." Eliot Spitzer is the kind of guy who in woodshop class would have buzzsawed through his own arm while at the same time insisting to everyone that he was a master carpenter and that really, it was just a flesh wound.
Hey, did I mention just how vengeful Eliot Spitzer was? Richard Nixon looked like the Essence of Charm and Charisma when compared to this guy:
In 2002-2005 I documented in some detail what today's Wall Street Journal editorial referred to as Eliot Spitzer's "consistent excesses as Attorney General."
[. . .]
Shortly after one of these articles appeared I received a phone call at home from an investigative reporter with one of the largest New York newspapers. He prodded me for quite a while to find out if I had been influenced or bribed by one of the companies Spitzer had attacked. Did I know anyone at, say, Merrill Lynch? (Nope). Do I own stock in the company? (Not then, and I'm currently shorting financials.)
I explained that nobody has accused me of any breach of integrity since I began writing in 1971. Besides, it would be very expensive to bribe me, I joked, because I had accumulated more money through investing than I know how to spend. I asked the reporter where he had gotten this very bad tip. He told me he had been contacted by Mr. Spitzer's office. Hardball was their favorite game.
Funny, these stories just keep popping up, don't they?
Want to check out one of the now-outdated media hosannas to their Fallen Hero? Try this one. Note the laughable attacks against the Chicago School of Economics by the very same guy who was "not sure" what his own theory of regulation was--except that he knew it involved him getting lots and lots of good press. Note as well the comparison between Ronald Reagan and the guy who killed Bruce Wayne's parents; I like comic books too and I am as partisan as they come but . . . um . . . really? Reagan as malevolent inspiration for a real life Dark Knight? Come one . . . Bruce Wayne didn't engage in structuring transactions and I am pretty sure he never had to violate the Mann Act in order to get a pretty face to gaze lovingly at him for a two hour minimum.
But the most important thing you ought to note is the following passage from the hosanna-filled article:
Another groupie, a middle-aged man, comes up to him and says, "I'd like to say two things: that you stay in your ethics and that you run for President." "The first is more important than the second," Spitzer responds. "Trust me."
Lots of people did. Look how their bet turned out. In the words of John Podhoretz: "Eliot Spitzer wanted what he wanted when he wanted it. That is the consistent pattern of his public life, and it is why America will be a better place when the only power he has left is the power to hurt the people closest to him."
Not that those people don't deserve better than Spitzer, of course. Good riddance.