March 21, 2008
U.S. Defends Tough Tactics on Spitzer
By DAVID JOHNSTON and PHILIP SHENON
WASHINGTON — The Justice Department used some of its most intrusive tactics against Eliot Spitzer, examining his financial records, eavesdropping on his phone calls and tailing him during its criminal investigation of the Emperor’s Club prostitution ring.
The scale and intensity of the investigation of Mr. Spitzer, then the governor of New York, seemed on its face to be a departure for the Justice Department, which aggressively investigates allegations of wrongdoing by public officials, but almost never investigates people who pay prostitutes for sex.
A review of recent federal cases shows that federal prosecutors go sparingly after owners and operators of prostitution enterprises, and usually only when millions of dollars are involved or there are aggravating circumstances, like human trafficking or child exploitation.
Government lawyers and investigators defend the expenditure of resources on Mr. Spitzer in the Emperor’s Club V.I.P. case as justifiable and necessary since it involved the possibility of criminal wrongdoing by New York’s highest elected official, who had been the state’s top prosecutor.
Bradley D. Simon, a veteran Justice Department trial lawyer who was federal prosecutor in Brooklyn throughout the 1990s, said that although it was rare for the department to use so many resources on the workings of a prostitution ring, the involvement of such a high-level politician must change the equation.
“If they’ve got some evidence of a high-ranking public official involved in violations of federal criminal code, it may not be unreasonable for them to pursue it,” he said. Still, he said, “I don’t think prostitution has been a high priority at the Justice Department.”
The focus on Mr. Spitzer was so intense that the F.B.I. used surveillance teams to follow both him and the prostitute in Washington in February. The surveillance teams had followed him at least once before — when he visited the city in January but did not engage a prostitute, officials said, confirming a report in The Washington Post. Stakeouts and surveillance are labor-intensive and often involve teams of a dozen or more agents and non-agent specialists.
An affidavit filed in the prostitution case did not identify Mr. Spitzer by name, only as Client 9, but it provided far more detail, some of it unusually explicit, about Client 9’s encounter with the prostitute than about any of the nine other clients identified by number in the document.
Government officials, including several who have been briefed on details of the case but declined to speak on the record because they were not authorized to discuss a continuing inquiry, said there was no alternative but to look into Mr. Spitzer’s activities once investigators began examining reports of suspicious transactions that banks filed with the Treasury Department. Those reports suggested to investigators that Mr. Spitzer might have been trying to keep anyone from noticing transfers of his own funds. That is the kind of activity that can bring an investigation of the possibility of corruption.
The reports led prosecutors and investigators to what some describe as a kind of crossroads. While they do not routinely investigate allegations concerning public officials who pay for sex, the Justice Department and Federal Bureau of Investigation regard public corruption as a high priority and routinely investigate allegations of even low-level wrongdoing.
“If the government gets a Suspicious Activity Report about a high-ranking public official, they would be negligent not to pursue it, if only to determine whether there was bribery or extortion involved,” said Robert D. Luskin, a defense lawyer and former federal prosecutor. Mr. Luskin said that as the case proceeds, the more difficult questions could well involve how the information about Mr. Spitzer became public and whether the government “will prosecute Spitzer if it doesn’t prosecute others in the same situation.”
The Treasury reports led federal investigators to the Emperor’s Club and Mr. Spitzer’s involvement with prostitutes, and later to the 47-page affidavit filed with the complaint that referred to him as Client 9.
The officials said that once they learned that such a prominent figure was involved in soliciting prostitutes, and had seemed to be arranging sex in violation of the statute that prohibits travel across state lines to engage in sex, they wanted to follow the evidence.
Moreover, several asserted that had they dropped the matter or given Mr. Spitzer’s conduct only cursory examination, they almost certainly would have been accused of a cover-up for failing to aggressively investigate possible misconduct by a public official.
In defending their handling of the case, officials said that in the end, investigators chose to monitor his conduct but made no effort to set up a sting, or an arranged situation in which Mr. Spitzer might implicate himself. They did not surreptitiously record his activities inside the hotel or seek to obtain DNA evidence. It was not necessary, as Mr. Spitzer proved to be easy prey, according to the affidavit, which was signed by an F.B.I. agent.
It indicated that on Feb. 13 federal agents staked out his hotel in Washington, and it contained recorded conversations that amply demonstrated that he willingly had a sexual encounter with a prostitute. Afterward she was recorded on a wiretap telling an Emperor’s Club employee: “I don’t think he’s difficult. I mean it’s kind of like, whatever.”
On March 10, when Mr. Spitzer was first identified by name by The New York Times on its Web site, the affidavit was widely used by news organizations to describe graphic details about his conduct.
Several current and former federal prosecutors and prominent defense lawyers who reviewed the document said the inclusion of such salacious details about Mr. Spitzer’s encounter with the prostitute went far beyond what was necessary to provide probable cause for the arrests and for searches, the purpose of the affidavit.
The government has not accused Mr. Spitzer, a Democrat, of any wrongdoing, although last week the top federal prosecutor in Manhattan, Michael J. Garcia, issued a statement saying there had been no deal with Mr. Spitzer’s lawyers, suggesting that a prosecution of some kind might still be a possibility. Some officials have cautioned against drawing conclusions about the case, since it is still under way while investigators try to determine whether Mr. Spitzer misused public or campaign funds.
At the Justice Department in Washington, senior political appointees have said they had little involvement in the case, saying that it was supervised by Mr. Garcia and directly managed by Boyd M. Johnson III, head of the public corruption unit in the Manhattan United States attorney’s office.
Attorney General Michael B. Mukasey, a former federal judge in New York, was not told about the case until shortly before March 5, when the complaint was filed against four of the prostitution ring’s employees.
Mr. Simon said it was unusual for the department to bring criminal charges in a prostitution case in which there was no allegation of the exploitation of children, human trafficking or some far more serious crime.
He said that in his eight years in the Brooklyn office in the 1990s, he could not recall a single major criminal case that centered on prostitution charges. “There were a lot of serious crimes — organized crime, narcotics cases, major financial crime investigations,” he said in an interview. “Prostitution was not a high priority.”
Law enforcement officials said the F.B.I. has about 450 active prostitution cases under investigation, almost all involving enterprises and some using techniques like wiretapping. In addition, since 2005, the F.B.I. has led an initiative known as Innocence Lost, which investigates prostitution involving underage women.
Justice Department officials insist that it has a strong record of breaking up large prostitution rings around the country, but many of the cases they cite involve case brought several years ago, especially before the Sept. 11, 2001, terror attacks; after that, the department vowed to focus its attention on national security threats.
And for years, they acknowledge, the department has rarely, if ever, prosecuted or even identified the clients of a prostitution ring.