Monday, March 17, 2008

Overlawyering Spitzer

I was pleased to see that we received a visit from Overlawyered's Walter Olson over the weekend. He was good enough to make a digital trek north of the border to comment on a post I wrote last Tuesday.

Mr. Olson and I have disagreed occasionally in the past, but at the outset I will reiterate my prior comment that Overlawyered is, indeed, one of the premier and most readable law blogs in America. Readers who are not familiar with it should definitely have a look.

Niceties aside, it emerges that Mr. Olson was none to pleased with my March 13 post, On Eliot Spitzer, Briefly, which addressed the downfall last week of New York's former Governor.

Mr. Olson commented at that post:

Let's see. Here you have a New York governor who crusaded for and signed into law "the toughest and most comprehensive anti-sex-trade law in the nation", which specifically raised the prison terms applicable to the workaday "johns" who patronize prostitutes. And you also have the most celebrated white-collar prosecutor of his era, charged with engaging in violations of the same money-laundering laws that he himself invoked in obtaining convictions. As NYC criminal defense attorney/blogger Scott Greenfield points out, "the government regularly prosecutes 'little people' for money laundering violations. It happens all the time":

So far, so good.

No argument here - Eliot Spitzer was clearly guilty of the crime of hypocrisy. He has been hoisted on his own petard, and by any karmic analysis, I suppose there is some measure of poetic justice there.

I am not inclined to the belief, however, that the role of the U.S. Justice Department is to mete out poetic justice. Nor am I of the view that it good public policy to over-criminalize sexual misdemeanors through money-laundering legislation that purports to address significantly more serious matters.

If it was wrong that such laws were zealously over-engaged by Spitzer against his prosecutorial targets, as Mr. Olson clearly implies, I do not see it as less wrong that the same approach has been used to so summarily disgrace and unseat an elected state Governor.

Mr. Olson's commentary continues:

And the best you can think of is to call the revulsion that drove Spitzer from office a "political lynching by the Monica brigade"? I hope it does not pass for progressive thinking in your country to defend high officials who consider themselves above the laws with which they trample others; if anything such an attitude sounds to me more like the sort of royalist streak that I thought Canada had left behind.

I'm not sure what Her Majesty - although she's a pretty nice girl - has to do with it, but I hope you will forgive me for noting that I have at no point defended Governor Spitzer. That was not the subject matter of my comments.

Rather, I queried, as did other writers subsequently, whether there was any evidence of misappropriation of public funds by the Governor in his exploits. Now, that would indeed be a very serious, criminal matter.

In the absence of such evidence - or even allegation of misuse of public funds to that time - I noted the rampant salivary droolings of certain legal pundits, as they so eagerly combed through obscure statutes, in pursuit of additional, major crimes with which to possibly charge the Governor in connection with this rather run-of-the-mill and unremarkable political scandal.

(That's unremarkable, by Larry Craig standards, anyways).

In my original post, I characterized this pile-on as a pursuit of "overcharges" against Governor Spitzer.

And with apologies to my friend Walter Olson, it is my view that lawyers who embrace such overcharging with such obvious zeal might be properly be accused of, dare I say it...


(* And welcome to Overlawyered readers)

- Garry J. Wise, Toronto

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