Former CT federal prosecutor H. James Pickerstein tells the New York Post that "it's against very, very firm government policy, especially when dealing with a high elected official" [to drop a criminal investigation in return for a resignation] "because the government doesn't want to appear that it is in any way interfering with the electoral process."
Then too, since at this point only Spitzer knows what, exactly, he's done to break the law prosecutors would be buying a pig in a poke in such a deal.
An anonymous former prosecutor tells New York Law Journal, "On the one hand, you don't want to be unfair by prosecuting someone for conduct the average person wouldn't be prosecuted for, but you also don't want to create the false impression that someone is getting away with something because they are a public figure or a celebrity."
Criminal lawyers and former prosecutors are sharply at odds over whether Spitzer will be prosecuted for – or can be convicted of – violating the Mann Act (transporting a person across state lines for immoral purposes); money-laundering (purchasing money orders to pay for his trysts); or structuring (making three wire transfers of less than $10,000 each from an account at North Fork Bank to an dummy corporation that fronted for the Emperors Club).
The Mann Act is rarely prosecuted these days, and is meant to punish pimps, not johns. Spitzer's defense can also make a plausible case that his evasive financial transactions were aimed at avoiding embarrassment, not to break the law willfully. Here's a round-up of the legal arguments for and against charging Spitzer with each of the federal offenses he allegedly committed:
† Mann Act: NY criminal defense attorney Harlan J. Protass, an adjunct professor at the Benjamin N. Cardozo School of law, explains that the Mann Act "proscribes the knowing persuasion, inducement, enticement, or coercion of 'any individual to travel' between states 'to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense,'" meaning that Spitzer's paying for a train ticket for "Kristen" to travel from NY to Washington, D.C. "would almost surely fall within the range of conduct prohibited by the Mann Act." While conceding that "the Mann Act technically applies [in this case," Former prosecutor Andrew C. Hruska disagrees, telling New York Law Journal that the statute is "generally is reserved for cases involving force - sex transactions or illegal labor trafficking. It's the force that's the material part."
† Money-Laundering: "Money laundering requires the use of money that is already dirty - the statute starts out with the funds having to be the proceeds of specific unlawful activity and this appears to be clean money," defense attorney Kathryn Keneally, who specializes in white-collar crime, explains to New York Law Journal. Professor Protass begs to differ, pointing out that while the money started out clean, Spitzer's "payments to shell corporations controlled by Emperors' Club VIP may constitute ... participation in a money-laundering conspiracy."
† Structuring: "The crime of structuring requires that you act to keep the cash transaction under the $10,000 reporting threshold and it doesn't look like he needed [to break down] $10,000," Keneally, tells New York Law Journal. Former prosecutor Hruska adds, "As in any white-collar case where there is not strict liability, the government has to prove intent - the hurdle is to show there was the intent to avoid the currency reporting requirements."
Leaving aside the merits of any of the above arguments Alan Dershowitz criticizes the FBI for monitoring Spitzer's activities in the first place:
There is no hard evidence that Eliot Spitzer was targeted for investigation, but the story of how he was caught does not ring entirely true to many experienced former prosecutors and current criminal lawyers. The New York Times reported that the revelations began with a routine tax inquiry by revenue agents "conducting a routine examination of suspicious financial transactions reported to them by banks." ...
We are talking about thousands, not millions, of dollars. We are also talking about a man who is a multimillionaire with numerous investments and purchases. The idea that federal investigators would focus on a few transactions to corporations - that were not themselves under investigation - raises as many questions as answers.
Money laundering, structuring and related financial crimes are designed to ferret out organized crime, drug dealing, terrorism and large-scale financial manipulation. They were not enacted to give the federal government the power to inquire into the sexual or financial activities of men who move money in order to hide payments to prostitutes.
Once federal authorities concluded that the "suspicious financial transactions" attributed to Mr. Spitzer did not fit into any of the paradigms for which the statutes were enacted, they should have closed the investigation. It's simply none of the federal government's business that a man may have been moving his own money around in order to keep his wife in the dark about his private sexual peccadilloes.
All well and good, but Attorney General Spizter would have relentlessly and ruthlessly pursued these charges - even if the criminal investigation ultimately petered out - if only to intimidate, harass and ultimately destroy his target.
Even if he ultimately avoids criminal prosecution, Spitzer may face professional discipline – either in the form of a private letter of admonition or a public censure – and could even be disbarred, as Bill Clinton was after his perjury conviction in the Paula Jones case.
Based on the facts that have emerged to date, it's impossible to determine whether Spitzer's actions would merit a private admonition or public censure, Barry Kamins, former deputy chief counsel at the 1st Department disciplinary committee, tells New York Law Journal. But Spitzer's prominence and the publicity surrounding his transgressions may force the committee to go public with its condemnation, he adds. Or not – Spitzer's resignation is an "acknowledgement of contrition and remorse which would be a very significant factor in evaluating the proper punishment," counters Michael S. Ross, a former state and federal prosecutor.
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