My colleague John Wohlstetter had such an interesting take on the Spitzer scandal--in actually proposing something to do about the type of political Machiavellianism Spitzer represents--that I reprint it here (from John's Discovery-linked blog, "Letter from the Capitol."
SAVONAROLA SPITZER: SEMI-SOLUTIONS
The resignation of Eliot Spitzer has sparked much commentary about the tragedy it is for his family, which no one disputes, and equally, the overdue comeuppance of a self-styled "steamroller" crusading reformer who showed his victims no mercy. That mercy is properly reserved for the merciful, and denied the merciless, seems to be understood by most. Spitzer's resignation (effective March 17), if ultimately an aid to a plea agreement, would show that Spitzer does indeed possess the precious quality of mercy--for himself, at least. But the U.S. attorney, in a rare statement, said that there was no plea deal of any kind made; here is a list of charges Spitzer could face.
Legal eagle Alan Dershowitz sees entrapment in the Spitzer case, and worries of open-ended investigative excess. WSJ pundit John Fund notes that Spitzer self-styled himself as the Enforcer--on his kiddie soccer team!, that he often prosecuted low-level corporate types, below the radar screen and after coercing millions from their corporate chieftains, and that he often lost those cases.
Spitzer was a supremely ruthless figure: his cold-blooded pursuit of political and prosecutorial power, his threatening to throw the awesome power of the state at targets who had the temerity to resist and protest their innocence, his coerced restructuring of companies by confronting them with Draconian penalties for the sin of resisting, his use of the press to convict victims in public without risking failure at trial, his calculated circumventing of the campaign finance laws so as to enable him to spend part of his vast family fortune. But most ruthless of all was his clandestine use of an unwitting friend's name as an alias to keep his trysts secret. It was a chilling negation of the very foundation of friendship, the marriage of trust and concern for the welfare of cherished others that makes for joy in life.
So what to do about post-Spitzer governance? His successor, David Paterson, solves New York State's immediate problem, gubernatorial succession. Notably, Peterson is personable and willing to listen respectfully to others, even those with whom he disagrees. The contrast is most welcome. But there are other problems yet to be faced, let alone, fixed.
The problem posed by the Spitzers of the world may be called the Savonarola Syndrome: extremes of ruthlessness used by political reformers, who treat and label their adversaries as evil, and thus to destroy them, literally as well as symbolically. The problem is especially acute when a public prosecutor has aspirations to higher political office, and pursues his legal career with political ambitions in mind.
At the root of Spitzer's career is an all-consuming ambition that, in its gross excess, is a danger to those who cross his path and, for public figures, to the public as well. It was best summed up in this timeless comment from Caesar to Antony in Act I, Scene II of Julius Caesar:
Yond Cassius has a lean and hungry look.
He thinks too much. Such men are dangerous.
As with all problems of this kind, solutions will be at best imperfect, offering no universally satisfying answer. I propose the following: (1) public prosecutors should either be barred outright from running for higher political office, or else be barred for 5 to 10 years from running; (2) prosecutors should be required to seek special judicial approval, before using extraordinary tools against defendants; (3) prosecutors should be penalized for leaking evidence to the press, by being prosecuted themselves; (4) prosecutions, in extreme cases of trial by press, should be thrown out, or at minimum the prosecution should be barred from using leaked evidence in court; (5) successful defendants, save in cases certified as extraordinary, should be reimbursed for their legal costs.
Separating Law & Politics. Limiting or barring outright prosecutors from seeking higher office carries a cost: Talented prosecutors who could govern effectively would be denied opportunity, or at least face diminished chances for reaching higher office. Rudy Giuliani, New York's finest mayor ever, might never have been elected. But people who combine Rudy's talents as a top prosecutor and as a top executive are rare. All too common are less talented Savonarolas.
Special Case Authority. The routine use of special legal tools like RICO (Racketeer-Influenced Corrupt Organizations) for purposes other than originally intended (RICO targeted organized crime), can be curbed. Extreme asset forfeitures can coerce innocent defendants into negotiating a plea deal, that they may ultimately resume their lives. Put simply, extraordinary tools like instantaneous seizure of assets, loosened evidentiary standards as to establishing conspiracies, and the like, should be reserved for special cases against defendants in certain designated classes. Organized crime bosses, drug lords, terrorists, are the kinds of defendants who pose special problems for prosecutors, including their ability to cause great public harm by intimidating witnesses, and highly-skilled evasion of statutes. For such cases, advance judicial certification of a case as being in such a special class should be required, before such tools can be used. Assaults on ordinary defendants--even those with vast financial resources, should be prevented. Only where special public harm is in prospect should the awesome power of the State be unleashed in its full force.
Penalizing Prosecutorial Leaks. A common tactic of ruthless prosecutors is to artfully leak selected evidence to the press, thus sullying the reputation pf defendant. While this may be satisfying as to particularly evil targets, the danger of harm to the reputation of other defendants is too great. The First Amendment precludes forceful action against the press (whose unholy and eager cooperation with Spitzer is detailed by WSJ columnist Kimberely Strassel), so the abuse must be stopped at the source.
Limiting or Tossing Scarlet-Letter Prosecutions. Where public abuse bids fair to irreparably harm a defendant's reputation, the courts should toss the case out, or as a lesser remedy, exclude leaked evidence from trial. Consider it analogous to the rationale for the Exclusionary Rule, which bars the use of illegally-seized evidence from being used in court. The objective of the ER is to deter misconduct (its efficacy is debatable); a Scarlet-Letter ER might limit resort to trial by press.
Reimbursing Successful, Non-Special, Defendants. Finally, forcing the State to pay the costs of unsuccessful prosecutions might deter marginal cases from being brought. Defendants classed as special, as noted above, should be exempted: We don't want the State to underwrite the defense costs of crime bosses, drug lords and terrorists.
These I term semi-solutions, because nothing works perfectly. But by making a replay of Eliot Spitzer's crusading career less likely, there would be immense public benefit. Oh, and there is one more politician who loses--a little, at least: Spitzer was a super delegate, pledged to Hillary. He has stepped aside, leaving Hillary with one fewer super pledgor.
March 13, 2008 in The Ap & The Cap: NYC & DC | Permalink | Comments (0)