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There But For The Grace Of God...

We are all criminals now.

By Petrarch  |  March 13, 2008

So New York State Governor Eliot Spitzer, far from being the next Elliot Ness, has turned out to be the next Bill Clinton except that he's somewhat less determined to hang onto office regardless of cost.  No doubt every American has by now heard the sordid story of how Gov. Spitzer spent nigh upon $100,000 on (presumably exceptionally gifted) prostitutes over the last few years, enlivening his business trips and enriching those whose sort he had formerly prosecuted.

Much has been made of the hypocrisy of Spitzer, formerly Mr. Clean, famous not only for bringing down the mighty on the smallest of pretexts, but indeed for pointedly taking out high-class prostitution rings much like the one of which he was such a satisfied repeat customer.

Another common theme is the amazement that the elegant Mrs. Spitzer was somehow willing to "stand by her man" in his humiliation and degradation, instead of sending him flying out the door with her Manolo Blahniks imprinted in his backside and a summons from her divorce lawyer following him through the air.  But perhaps the most common response is one of glee and celebration, as Wall Street rejoices at the demise of its nemesis.

For us little people down on the street, it's fun to watch the clash of the Titans.  Let us not be so hasty, though, in thinking that in Gov. Spitzer's defenestration there is nothing for us but entertainment.

The Tangled Web

Prostitution is illegal, and so is patronizing a prostitute.  If you pay for the hooker to travel across a state boundary, it becomes a federal crime.  But that's not what got Spitzer in trouble originally.  The FBI's attention was first drawn to the situation by his banker.

The problem with a high-end whore is that she is very expensive.  Spitzer is a rich man and the money itself is not the trouble; but how do you get it to her?  Writing a check is obviously out, and a credit card is equally unappealing.  Despite Mayor Giuliani's tremendous achievements, the City of New York is still not the sort of place that you want to cart around tens of thousands of dollars in cash.  Instead, Spitzer tried to pay via wire-transfer between bank accounts.

The difficulty there is that, while you can wire any amount that way, all transfers over $10,000 are reported to the Feds.  What's more, if you try to avoid this by sending two wire transfers for smaller amounts, that too is reported as an attempt to evade the reporting requirement.  Spitzer apparently fell foul of both these rules, setting into motion the chain of events that led to his fall from grace.

But what business is it of the government what you do with your money?  How have we come to a situation where your bank is required to report to the government when you spend large sums?  Bankers have always been obliged to show their records to investigator when a subpoena is issued by a judge, but this is a pro-active reporting, when there is no suspicion of any crime on the part of the government, much less proof.

Have criminals been caught this way?  Sure they have.  And if the police had the power to enter your home at any time and search as they please, no doubt we'd catch lots more.  But despite its proven effectiveness, our Founders decided that the costs of what they termed "unreasonable search and seizure" vastly exceeded the benefits.  We've forgotten this lesson.

Before Spitzer ever committed a moral sin, he'd committed a crime just by moving his own money around and snared himself in the tangled web of laws that we've allowed to be passed.

The Schadenfreude of Creativity

In what is fast becoming an overused word here at Scragged, the schadenfreude of Spitzer's situation is overwhelming: he was brought down by questionable legal tactics he himself had honed and perfected.

While we've all heard that Al Capone was imprisoned, not for murder, but for tax fraud, the fact remains that the overwhelming majority of criminal cases through the years have been prosecuted on the basis of what a normal person would expect.  Over the last couple decades, though, this has ceased to be the case.

Remember Martha Stewart?  She was never convicted of committing the crime of securities fraud.  Instead, she was convicted of lying to an investigator concerning an event which, the jury found, was not a crime.

Remember Scooter Libby?  He wasn't convicted for "outing" CIA agent Valerie Plame.  As the investigators already knew before they even interviewed him, she wasn't a covert agent, and he hadn't done the outing if it could be called that.  No, he was convicted of lying to the investigator about the content of a conversation with a journalist, the only "proof" of his "crime" the fact that the journalist's recollection differed from his.

There's nothing wrong with adding minor crimes onto major ones in an attempt to achieve massive punishments for heinous crimes - for example, there have been situations in which pedophile murderers have been prosecuted not only for kidnapping and murder, but also for the theft of the child's clothes.  Piling on charges helps to reach the "three strikes" threshold of felonies so that the perpetrator can be locked away for life.

But it's an entirely different matter to go after someone for a triviality because you cannot convict them of any real crime but are unwilling to let go for either personal or political reasons.

Spitzer was the master of this tactic.  In an infamous case, Spitzer hounded Maurice Greenberg, chairman of insurance giant AIG, from his office at the helm of the company he had founded and built up over decades, and extracted a billion-dollar settlement from the company, which events resulted in the loss of hundreds of billions of stockholder equity - but not only was neither Greenberg nor AIG convicted of any crime, they were never even indicted and no solid accusations were ever made.  A long, long list of similar situations shows that Spitzer actually preferred such underhanded tactics to the old-fashioned traditional expectation that prosecutors actually have to prove the accused guilty in court.

It appears that it has now become common practice of government investigators to look for the little stuff - the sort of thing which, if it should even be illegal at all, should be of no more consequence than a traffic ticket - and try to use that as leverage to get the victim to confess without a trial.  Is this the sort of game that we, as a country, want our officials playing?  Spitzer was the master of this particular art form and was best known for it.  He has now spawned a legion of imitators, to our peril.

The Mirror of Reflection

Which brings us to our conclusion.  Most ordinary Americans think they have a general idea of what the law is - don't steal, don't murder, don't cheat people, and you should be OK.  But it's been a long time since our laws were that simple and straightforward.  It's been pointed out that the cops can pull you over anytime they like, and they are virtually guaranteed to find you in violation of some ordinance or other if they're of a mind to be mean.  The same is true of all our lives.

Before we turn away from Spitzer with a snicker, we need to take a long, serious look in the mirror, and carefully consider: is there nothing we have ever done that violates the law?  Not every man may be inclined to hire a hooker; but is there no regulation that we have ever breached?  Our taxes possibly?  The local zoning ordinances, perhaps?

The list is endless - and that's the point.  In a society where there are so many laws, of such mind-boggling complexity, that no one can keep their nose clean, nobody is safe.  Piss off the wrong guy and you're dead - maybe not in as explosive a fashion as Gov. Spitzer, but no less thoroughly for all that.

Hillary's "politics of personal destruction" has both broadened and extended its reach.  Thanks to Eliot Spitzer's creative prosecution tactics and his establishment of the principle that the technicalities of the law are of greater importance than anything resembling fairness or justice, anyone is fair game.

What's needed is a machete for the thicket - not just of government spending, but of the very laws themselves that entangle us, restrict us, burden us, and at any time can instantly bind and destroy any one of us, no matter how high or low.

We need to get back to due process and the presumption - both in law, and in the media - that you are innocent until proven guilty.  PROVEN guilty, which means being convicted by an actual court, by a jury of your peers, of a crime which, in and of itself, is clearly wrong.

We've a long way to go; best to start now, while the flames of ex-Governor Eliot Spitzer's unlamented demise still brightly light the way.