The
Entrapment of Eliot
Alan M. Dershowitz
13 March 2008
The
Wall Street Journal
The federal criminal investigation
that has led to Eliot Spitzer's resignation as governor of New York illustrates
the great dangers all Americans face from vague and open-ended sex and
money-transaction statutes.
Federal law, if read broadly,
criminalizes virtually all sexual encounters for which something of value has
been given. Federal money-laundering statutes criminalize many entirely
legitimate and conventional banking transactions. Congress enacted these laws
to give federal prosecutors wide discretion in deciding which "bad
guys" to go after.
Generally, wise and intelligent
prosecutors use their discretion properly -- to target organized crime,
terrorism, financial predation, exploitation of children and the like. But the
very existence of these selectively enforced statutes poses grave dangers of
abuse. They lie around like loaded guns waiting to be used against the enemies
of politically motivated investigators, prosecutors and politicians.
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." This investigation allegedly found "several unusual movements
of cash involving the Governor of New York." But the movement of the
amounts of cash required to pay prostitutes, even high-priced prostitutes over
a long period of time, does not commonly generate a full-scale
investigation.
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.
Even if Mr. Spitzer's derelictions were
serendipitously discovered as a result of routine, computerized examination of
bank transactions, the dangers inherent in selective use of overbroad criminal
statutes remain. 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.
But the authorities didn't close
the investigation. They expanded it, because they had caught a big fish in the
wide net they had cast.
In this case, they wiretapped 5,000
phone conversations, intercepted 6,000 emails, used surveillance and undercover
tactics that are more appropriate for trapping terrorists than entrapping
johns. Unlike terrorism and other predatory crimes, prostitution is legal in
many parts of the world and in some parts of the U.S. Even in places like New
York, where it is technically illegal, johns are rarely prosecuted.
Prostitution rings operate openly, advertising "massage" and
"escort" services in the back pages of glossy magazines, local
newspapers and television sex channels.
If the federal government really
wanted to shut down these operations, they could easily do it without a single
wiretap or email intercept. All they would have to do is get an undercover
agent to answer the ads, arrange for the "escort" to go from New York
to New Jersey and be arrested. But many in law enforcement would much rather
reserve these statutes for selective use against predetermined targets.
In this case, if the serendipitous
bank audit really led federal agents to Mr. Spitzer, and Mr. Spitzer led them
to the Emperor's Club, and federal prosecutors really wanted to get the Club,
they could easily have sent an undercover cop to pose as a john, instead of
tapping phones and reading emails -- tactics designed to catch and embarrass
Mr. Spitzer with his own recorded words, which could be, and were, leaked to
the media. As this newspaper has reported: "It isn't clear why the FBI
sought the wiretap warrant. Federal prostitution probes are exceedingly rare,
lawyers say, except in cases involving organized-crime leaders or child abuse.
Federal wiretaps are seldom used to make these cases . . ."
Lavrenti Beria, the head of Joseph
Stalin's KGB, once quipped to his boss, "show me the man and I will find
the crime." The Soviet Union was notorious for having accordion-like
criminal laws that could be adjusted to fit almost any dissident target. The
U.S. is a far cry from the Soviet Union, but our laws are dangerously
overbroad.
Both Democrats and Republicans have
targeted political adversaries over the years. The weapons of choice are almost
always elastic criminal laws. And few laws are more elastic, and susceptible to
abuse, than federal laws on money laundering and sex crimes. For the sake of
all Americans, these laws should be narrowed and limited to predatory crimes
with real victims.
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Mr. Dershowitz teaches law at
Harvard University and is the author of "Finding Jefferson" (Wiley,
2007).