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Bob Kessler who covers the courts for Newsday has a nifty little article up about how there is controversy within the US Attorney’s Office about whether or not to charge Elliot Spitzer with a crime.

While stressing that the investigation is in its early stages, prosecutors and investigators in the Southern District are split on whether to charge Gov. Eliot Spitzer with any substantive crimes that might lead to jail time in connection with his involvement in a prostitution ring, according to several sources familiar with the situation.

Although there has been all kinds of talk in the press about the possibility of charging Spitzer for "structuring" his movement of money, presumably under the Bank Secrecy Act and the Money Laundering Control Act, the facts as reported thus far in the press would not support such charges. As I previously explained the MLCA requires that the money in question be the proceeds of unlawful activity.

Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such financial transaction which in fact involves the proceeds of specified unlawful activity

That’s why right now the feds are busy trying to find any evidence that he used campaign or government funds in these transactions.

investigators are looking into whether he used any public or campaign funds or services to pay for or facilitate any illegal activities, including hiring prostitutes, the sources said. An affidavit filed in federal court as part of the investigation into the prostitution ring details what is said to be his use of personal bank funds to pay for prostitutes.

[emphasis mine]

If the money is merely his own perfectly legal personal money, the government lacks an essential element necessary to charge him with money laundering.

Which leaves them with the Mann Act violation as the top count. Which could prove embarrassing for the government.

Department of Justice data compiled by the nonprofit TRAC organization shows that the Manhattan U.S. Attorney’s office rarely brings cases under the Mann Act and money structuring laws as a top charge. The cases usually involve organizers of sex rings and human traffickers.

 You see, it’s one thing if you are using the Mann Act to prosecute the creepy old man on-line predator from Brooklyn who lures the teenager from Darien, Conn. or Bernardsville, NJ to Manhattan for a night in a hotel. Nobody’s going to quarrel with that. Or if you use it to prosecute human traffickers who transport undocumented women across state lines to sell into a life of sexual slavery. Nobody’s going to claim you have a politically motivated prosecution; nor if you use on a kidnapper who takes his prey across state lines and rapes or molests the kidnap victim.  

However, if the only count you have is the Mann Act violations –involving women of the age of consent, who were highly paid and advertised themselves in soft core porn-ish, pin up photo spreads — against the Democratic governor of a state with a huge number of electoral votes who just happened to be in the aftermath of really personal and nasty tiff with Joe Bruno, the most powerful Republican member of the state government? Well,…..?

Oh, and if in response, Joe Bruno hired a famed Republican dirty trickster? (see below)

Yeah, it starts looking a bit more like the US Attorney was engaging in a political hit job. I’m not saying that Garcia in fact did such a thing. I have absolutely no reason to believe he did, but in the aftermath of the US Attorney firing scandal, many of us wondered aloud about what the remaining USA’s had to do, or be willing to do, to keep their jobs. Whether Karl Rove believed that Chertoff protege Michael Garcia was a "loyal Bushie" is food for thought.

You see, Garcia’s problem is one of perception. If you are the (professional) spawn of Chertoff, if you take out one of the most feared Democrats in the country, and if your investigation then doesn’t turn up anything that speaks to what most low information voters think of as criminal intent (as opposed to a lack of morality and judgement), you — Garcia — open yourself up to charges of having abused prosecutorial discretion and having politicized your office.  Talk about painting a bullseye on your own back!

Worse still is if you have Republican dirty trickster Roger Stone intimating to Newsday’s Ellis Henican that his recent hiring by Joe Bruno may have resulted in Spitzer getting caught.

He set up a 527 political-hit committee. He’s been shopping anti-Spitzer stories for months. He’s been warning darkly about some "really ugly" stuff to come.

Henican says that before he could even ask Stone if he had a hand in Spitzer’s woes, Stone jumped in with

"I didn’t make him go to a prostitution ring," said the most famous and ruthless Republican dirty trickster who still walks the earth. "He did that all on his own."

Makes you wonder when it all shakes out, who’s going to come out looking worse in this incident. The guy who used his own private money to betray his wife, or the guy who filed an affidavit saying that Spitzer used his own private money and is now using how many hours of FBI time going through every financial record they can think of to try and find some way around the fact that all they have Spitzer on is the most technical violation of the Mann Act, without any of the underlying serious circumstances that make a Mann Act prosecution look like something other than panty sniffing?

Of course, if they find evidence that Spitzer used the "proceeds of unlawful activity," all bets are off.

photo by crazyneighborlady 

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