spitzer.thumbnail.jpgOn February 19, 2009, US District Judge Jed Rakoff ordered the US Attorney’s Office, SDNY, to turn over Grand Jury materials to the New York Times. This is reported to be the first time that a federal judge has issued such an order. Although I have written before that federal statues dealing with Grand Jury secrecy allow for the materials to be turned over for use in "another proceeding", or in the interests of justice and case law, this ruling has expanded the definition of "another proceeding" to include congressional investigations. The procedure in the law traditionally involves a motion MADE BY THE PROSECUTOR for permission to release the info.

In the Spitzer matter, the Times is making the motion and the prosecutor is opposing it, so it is clearly outside the scheme contemplated in the Grand Jury secrecy laws. If it is indeed a case of first impression, I am not surprised that DOJ is appealing it. That is actually not a bad idea. A district court ruling has no binding effect on other courts, it is only persuasive authority. A circuit court of appeals decision would bind every district court in the 2nd Circuit (NYS, CT, VT), and would be persuasive authority in other circuits.

I would not be surprised if this case went to the Supreme Court because it represents such a radical departure from prior practice. I suspect that the case builds upon another SDNY case US v. Amodeo , 71 F.3d 1044, wherein the court found that documents expressly written to be filed under seal with the court could in fact be released (sometimes with redactions) after balancing "the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." Id. at 1049 [emphasis added].

Many, and I am one of them, suspect that there may be something hinky about the Spitzer investigation. I have opined before that the publicly available information about Spitzer’s financial transactions do not show any violations of the money laundering laws, and his technical violation of the Mann Act, is barred from prosecution under existing DOJ guidelines in the US Attorney’s Manual.

Then US Attorney (and Mike Chertoff protégé), Michael Garcia, ought to have known he did not have a prosecutable case when the FBI agents first presented it. Yet, instead of declining the prosecution, his office calls up Spitzer and tells him about the evidence of Spitzer’s involvement with hookers. That’s a state crime, and outside Garcia’s then jurisdiction. Garcia had the option of referring the case to the the DA, who could then exercise his own prosecutorial discretion and decide whether to prosecute Spitzer.

The one thing Garcia did not have the right to do was call up Spitzer and blackmail him into resigning as Governor. I mean, really, did US Attorneys call up Mafia bosses or drug lords and say, "ha ha, I’m going to indict you and here is my evidence"? Of course not!

I still think Silda Wall Spitzer was right to think that they should have fought the case. Garcia obviously had nothing to charge with–or he would have indicted first and telephoned second.

As the Times’ City Room notes:

Documents like the affidavits sought by The Times generally detail the early stages of an inquiry and describe the investigative steps taken as part of the request to the judge for a wiretap order. In this instance, the government was seeking to tap the cellular phones of two people involved in the prostitution ring, the Emperor’s Club VIP.

The Times, in arguing for the release of the documents, had cited suspicions raised on liberal blogs—and even among some Republicans —that the prostitution case, which began with an investigation of Mr. Spitzer, was a politically motivated attack. Mr. Spitzer, a zealous pursuer of Wall Street wrongdoing as state attorney general, had been mentioned as a prospect for higher office.

Interestingly, Judge Rakoff was previously upheld by the 2nd Circuit Court of Appeals in New York Stock Exchange v. TheStreet.Com, in which an online news organization sought access to depositions taken in connection with a civil case that grew out of an SEC investigation and contentions that "the NYSE and four of its officers, Richard A. Grasso, Edward A. Kwalwasser, Robert J. McSeeney, and Brian McNamara (collectively, the "Officers") were aware of, and encouraged, illegal trading activities on the exchange floor." Gee, I wonder what particulars Judge Rakoff already knows about Spitzer’s Wall Street enemies?

If we here at FDL have had any hand in helping the New York Times get to the bottom of this case, well, it’s been a pleasure, and I wish the Grey lady all success in this pursuit. Certainly after what we have already learned about David Iglesias being forced from office for refusing to engage in political witch hunts, and the crazy prosecutions in Alabama, this non prosecution/political destruction of Eliot Spitzer raises many questions.

Related posts:

  1. Appeals Court Won’t Unseal Spitzer Wiretap Applications
  2. Torture: How a Review Gets to Grand Jury in Five Days or Less
  3. SCOTUS: Citzens United to be Re-Argued Today; Campaign Finance, Speech Rights Hang in Balance
  4. OLC: Grand Obstruction Party Still Obstructing Dawn Johnsen’s Nomination
  5. Karl Rove: That’s Why They Call It a Limited Hang-Out