The young prosecutor rubbed his hands with glee. For months on end, the high-profile defense lawyer had been a thorn in his side. He’d violated every rule in the book, hurled scandalous accusations, tried the case in the press despite countless admonitions from the court. But finally, the charlatan had stepped in it. Preoccupied with theatrics, he’d overlooked the basic lawyer work and blown a filing deadline.
By law, it meant his client could not appeal the detention order that had already kept him in jail for a year-and-a-half. Many months more in the slammer loomed before what promised to be a very long trial. To be sure, any appeal would likely have been rejected — the defendant was alleged to be a terrorist. Still, appellate-court review of lengthy pretrial incarceration was elementary practice. The defendant, after all, was presumed innocent.
And that’s why the prosecutor was smirking. His high-profile bête noire, having made a seemingly inexcusable error that would get a rookie fired, now had no choice but to beg the indulgence of the very judge whose admonitions he’d serially flouted. It was delicious. Deep down, whispering beneath the heat of battle, the prosecutor knew the defendant shouldn’t be penalized for the lawyer’s dereliction. But to hell with that: The law didn’t require it and this was now about comeuppance. The prosecutor insisted that default was default, case closed.
Fortunately, the judge was far wiser than the prosecutor. I know because I was the prosecutor.
What I was demanding, the judge observed, was “poetic justice.” The work of the federal courts, however, and the compass that should always guide attorneys for the United States, is “prosaic justice” — the even-handed administration of the law, day in and day out, without fear or favor. Applying that principle, the judge forgave the default, even though that meant his own detention order would be scrutinized by the higher court (which later affirmed his ruling).
Pretty smart guy, that judge. I was glad when President Bush made him the attorney general of the United States.
At the time, though, 14 years ago, I was more than a little embarrassed to have to be told something I already knew. Many criminal defendants are sad sacks. Many are creeps. Some are even innocent. But regardless, our job was to apply the same standard of justice to all of them. To do their jobs right, prosecutors have to do prosaic justice. Poetic justice is for the movies, and the op-ed pages.
I couldn’t help but recall that episode amid the intrigue of New York Governor Eliot Spitzer’s fall from grace. The United States Attorney’s Office for the Southern District of New York has the ticket on the investigation. For any of us who’ve been privileged to spend a single day there (and I got to spend 18 years), it is, bar none, the best prosecutor’s office in the country. It has that deserved reputation because it does, as Attorney General Mukasey (another alum) so perfectly put it, prosaic justice.
Eliot Spitzer is widely reviled, and not without reason. His abuse of prosecutorial power is legendary.
The power wielded by prosecutors is immense. It has to be that way because it is the public’s power, a key ingredient to the order liberty requires if it is to thrive. Still, the prosecutor must bear in mind that the power is a trust, not a personal arsenal. Those who miss that distinction — or, worse, ride roughshod over it — are more apt to leave lives and reputations in ruin than to protect the public welfare.
Spitzer is a deeply flawed character. One had to snicker Wednesday, during his brief, surreal resignation speech, as he painted his vision of public service: This after an explosive career of converting public power to personal advancement and advantage. And now, cherry-on-top, it turns out he was a hypocrite of epic proportion — grandstanding prostitution buster by day, denizen of the demimonde by night.
And so it’s comeuppance time. The victims this self-proclaimed “f***ing juggernaut” took unbridled pleasure in raking over the coals understandably want their pound of flesh, cheered on by the same fickle media that for years egged Spitzer on.
But I suspect those waiting for poetic justice will be disappointed. Michael Garcia, the U.S. attorney (and an old friend of mine), has announced that the Southern District made no deal to induce the governor’s resignation. I have no idea whether Spitzer was foolish enough to seek such an arrangement, but he plainly shouldn’t have been allowed to use his public office as a private chit—and he wasn’t.
Nevertheless, that doesn’t mean the resignation counts for nothing. Spitzer, for all his many faults, did the right thing, sparing New Yorkers a drawn-out, Clintonesque calamity.
So, does that mean he won’t be charged? Maybe, maybe not—we don’t know right now what the evidence is, and without knowing that, any guess is sheer speculation. But in the Southern District, I’m confident Spitzer will get what he so often failed to give: a fair shake.
If other clients of the prostitution ring are not charged (assuming they cooperate with the investigation), he won’t be singled out. If the proof shows he laundered money at a level that would ordinarily compel charges, he’ll very likely be indicted. Prostitution rings, as Spitzer well knew, notoriously fund organized crime rackets. The purpose of the money-laundering laws is precisely to ferret out crime syndicates and starve them of the cash that makes them go.
But there is a big difference between, for example, laundering money to conceal that one is a drug trafficker and doing it to hide one’s own deep personal failings. The difference does not excuse, but it does mitigate. And because it does, it will duly be counted in his favor.
Spitzer’s hubris, his cautionary tale of the wages of breathtaking arrogance, is galactic. His crimes, though, appear to be mundane. That, I suspect, is how they will be treated. Poetic justice will have to await the movie.
– Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies. His book, Willful Blindness: A Memoir of the Jihad, will be published by Encounter Books this month.