Eliot Spitzer Is A Jerk And A Hypocrite, But He Should Not Be Prosecuted

Unless you have somehow managed to avoid any and all news media for the last 3 days you no doubt are aware that Eliot Spitzer resigned his position as Governor of New York today, brought down by revelations that he had engaged the services of a prostitute while traveling on government business in Washington, D.C. Since the story first broke on Monday, additional allegations have surfaced concerning the frequency of Spitzer’s dalliances, the amount of money that he spent on high end call girls, and the span of years over which he has indulged his particular sweet tooth. All of this is rather unseemly, most will stipulate, and I heartily agree that resigning from office was the right thing for Spitzer to do. Engaging in the sort of conduct for which he had prosecuted others in the past reveals Spitzer as a hypocrite who sees himself as above the law, and robbed him of the moral authority to exercise authority and to wield governmental power over the citizens of New York. Unless there is much more to the story than has come to light, however, prosecuting Spitzer would be a colossal waste of governmental resources.

The various legal “experts” who seem to come out of the woodwork in droves and infest the airwaves when such stories break have opined in the last three days that Spitzer may be exposed to prosecution for a Holy Host of crimes, including violations of the Mann Act, as well as currency related crime such as “structuring” in violation of the Bank Secrecy Act and money laundering. While Spitzer may have techinically violated the provisions of the Mann Act (about which more in a minute), the currency related crimes do not appear to be an issue.

First is the matter of the Bank Secrecy Act (“BSA”). The BSA requires the filing of currency transaction reports for transactions in excess of $10,000.00. It is a violation of the BSA to break down such transactions, i.e., to “structure” them, into a series of smaller transactions so as to avoid the currency reporting obligations. Based on the facts so far reported, however, there does not appear to be any evidence that Spitzer engaged in any transaction in excess of $10,000, let alone structured the transaction to avoid legal reporting requirements. The media has reported that Spitzer paid more than $4,000 for his session with an escort in Washington. Even if there were mutliple such sessions, there does not appear to be any evidence that any one of them exceeded the $10,000 threshold. Even if reports that Spitzer blew more than $80,000 on prostitutes, unless there is proof that any of those transactions involved an amount more than $10,000, and that Spitzer “structured” his payment to the escort service for the purpose of avoiding currency reporting rules, it does not appear that there is any basis whatsoever to charge him with structuring in violation of the BSA.

A money laundering charge would appear to be even less viable. Without getting into intricate detail money laundering involves engaging in financial transactions that entail, for example, funds transfers, investments or asset sales, for the purpose of hiding from authorities the illicit source of funds, and returning dirty money to the legitimate economy to the benefit of the launderer. It is a prerequisite to a money laundering charge that the funds involved were derived from illicit activities. But in Spitzer’s case, there is no claim that he transferred dirty money to the agency, the prostitute, or anyone else. As the old saying goes, he didn’t launder the money, he made it dirty – in other words, Spitzer’s legitimate funds became dirty when he used them to buy sex. It is of course possible that the agency to which Spitzer made the payments engaged in unlawful money laundering activities (indeed, money laundering is one of the key “derivative” crimes that the feds often use to shut down escort services), but there is no information that Spitzer engaged in any activity aimed at hiding the source of the funds. By merely paying money to the service for sex Spitzer cannot reasonably be said to have done anything to hide the illicit source of funds (funds that were, in fact, with respect to Spitzer not illicit at all, regardless of the use to which he put them). In short, TV talking heads’ views to the contrary, I would surmise that there is almost zero likelihood that Spitzer will be charged with a currency related offense.

Some have speculated that perhaps Spitzer could be charged with wire or mail fraud. But these crimes require a showing that Spitzer engaged in some form of fraudulent conduct. While it is likely that Spitzer engaged in deceiving, for instance, his wife, his staff or his security detail, there is no evidence, it appears, that he did anything that could be described as “fraudulent” as that term is used in connection with the wire and mail fraud statutes.

Which leaves the Mann Act. Enacted in 1910, the act makes it a crime to transport women across state lines for the purposes of participating in acts of prostitution, among other things. The act also imposes criminal liability on those who aid, assist, incite or entice women into traveling across state lines for purposes of prostitution. While it may appear that Spitzer technically violated the act by “enticing” the escort to travel from New York to Washington for the purposes of engaging in an act of prostitution, prosecuting him for the purported violation would not really serve the purposes of the act or, for that matter, any other reasonably legitimate law enforcement purpose.

The Mann Act was intended to impede the transport of woemn and girls by coercion, and to provide federal law enforcement agencies with a tool to prosecute those who engaged in the forced coercion of women into engaging in prostitution. Whatever else Eliot Spitzer might have done, there is no reasonable argument that he coerced any of the women to whom he paid money for sex into sleeping with him. To the contrary, the facts that have been made public suggest that the women in question – including “Kristen,” the escort whose D.C. escapades with Spitzer led to this week’s events – were willing participants, and it certainly appears that “Kristen’s” trip to Washington to “confer” with the former Governor of New York was anything but coerced. It is hard to see, in short, how the legislative purposes of the Mann Act are furthered by prosecuting such as Spitzer. It is a fact that these days escorts advertise on the internet, book appointments by email and cell phone, and travel around the country plying their wares. Eliot Spitzer met at least one such woman, and probably more than that. It is difficult to see how, on the facts, a Mann Act prosecution makes any sense. There is of course the question of whether Sptzer could be prosecuted for the mere act of patronizing a prostitute. In many states, solicitation is a summary offense (kind of like a speeding ticket) or a low grade misdemeanor. I suppose that would be an option, but am not really sure what the point would be. I’m sure Spitzer would gladly pay a fine on a summary offense.

The bottom line, in my view, is that, while Eliot Spitzer may be a lousy husband and a vindictive former prosecutor whose fall from power brings a certain degree of schadenfreude, prosecuting him for felony crimes such as have been suggested would be a waste of time and money, and the sort of prosecutorial boondogglethe likes of which St. Eliot himself would have been proud in his heyday. But all of these alleged “crimes,” in addition to apparently lacking any factual basis, rest on a shaky foundation, specifically, the loppy notion that call girls and escort services are somehow a threat to public order. Yes, Spitzer should deserve to lose his office for being a hypocrite. Maybe he deserves to lose his family for being a cad. He does not, however, deserve an indictment for felony offenses.

UPDATE: One note – unlike most states, in the District of Columbia, soliciting and paying for sex is a felony, not a misdemeanor or summary offense. That does not, however, alter my analysis at all. It also raises a question – how many men were prosecuted in D.C. last year for the felony crime of solicitation?