Politics & Policy

Spitzer’s Privilege

The Empire State's falling gov.

As Democrats in Washington continue to call for the head of Alberto Gonzales, another scandal involving executive privilege is heating up in New York. In a reversal of the political fight that has embroiled Washington, the scandal in Albany features a Democratic executive attempting to shield his aides from a Republican legislature intent on investigating alleged abuses of power.

Last week, New York attorney general Andrew Cuomo issued a report detailing an effort by Governor Eliot Spitzer’s top aides to use the state police to collect potentially damaging information about one of Spitzer’s chief adversaries in the state legislature. According to Cuomo’s report, Darren Dopp, Spitzer’s communications director, and William Howard, his liaison to the state police, conspired to get the state police to track state senate majority leader Joseph Bruno’s use of state aircraft. Dopp suspected that Bruno was using the aircraft for political travel, and he wanted the state police to make records he could leak to the press. Cuomo’s report cleared Bruno and revealed that Dopp had sent e-mails Spitzer’s secretary, Richard Baum, making what appear to be references to the plan.

Spitzer, who maintains that he was unaware of the scheme, has suspended Dopp and reassigned Howard, but yesterday the Republican-controlled state senate announced its intentions to investigate the matter further. Spitzer has said that if he and his aides are called to testify, it is likely that they will invoke executive privilege and refuse.

By contrast, Spitzer has announced that he would allow his aides to cooperate with a State Ethics Commission investigation, but Republicans in the state senate point out that John D. Feerick, the commission’s chairman, is a Spitzer appointee. Spitzer’s aides refused to answer questions from Cuomo, who could not compel testimony for his investigation. Now Republicans on the senate committee on investigations and government operations want to ask the aides under oath whether Spitzer knew about the plan.

The scandal has created a tricky situation for New York’s Democratic congressional delegation, most of which has notably declined to defend Spitzer. Some of that can be attributed to intramural bickering over New York politics, but the Democrats’ battle with the Bush administration regarding executive privilege and the politicization of law enforcement can’t be overlooked as a factor. It would be hard for any congressional Democrat to support Spitzer right now without undermining his own case against the administration.

Spitzer’s troubles have also prompted an outburst of what the Wall Street Journal’s Nathan Koppel called, “Spitzerfreude.” As attorney general of New York from 1998 to 2006, Spitzer made plenty of enemies, particularly during his famous crusades against Wall Street, who have expressed delight in various publications that his ruthless tactics appear to have finally backfired. Among these are Home Depot founder and former director of the New York Stock Exchange Kenneth G. Langone, who told the New York Times, “Mr. Spitzer has been manipulating the press and the law to disparage decent people for years, and it’s about time that he’s been held accountable.”

But Wall Street types weren’t the only ones enjoying Spitzer’s current misfortune. Spitzer’s tenure as attorney general was particularly vexing for conservatives as well, mainly because he attempted to impose liberal policies on the entire nation by pursuing or threatening to pursue litigation against gun makers, tobacco companies, and even pro-life groups. In 2004, National Review labeled Spitzer “the most destructive politician in America,” and senior editor Ramesh Ponnuru described several cases in which Spitzer’s legal activism bypassed the democratic process and yielded harmful national policies. Considering how much power Spitzer had accumulated as attorney general, Ponnuru wondered whether the job of governor, which Spitzer was known to want, “would be a demotion.”

It would appear to be a prescient question, now that Spitzer is the one facing subpoenas. Since taking over as governor, his legislative agenda has largely stalled. His approval ratings are dropping in the polls, which also show solid support for investigating the scandal further, and a resurgent Republican state senate seems more than happy to comply. Not since Katie Couric took over the CBS Evening News has a job change resulted in such a dramatic decline in power and prestige.

Claims of executive privilege have not historically fared well in New York, and it is likely that if he challenged the state senate’s subpoenas, Spitzer would lose in court. He has an even weaker case than most. The matter on which the state legislature seeks information involves a communications strategy aimed at smearing a high-ranking member of the legislature — not exactly privileged stuff. The prevailing sentiment seems to be that, after eight years of bullying and intimidation, it’s time to take a closer look at Eliot Spitzer’s M.O.

— Stephen Spruiell reports for National Review Online.

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