Henry J. Stern
September 19, 2007
Last Monday we wrote about the decline of Governor Spitzer's stature since he took office, we urged him to pull himself together, be kind to man and beast, treat people with courtesy even if he thought they were stupid, and stick with the principles of honest, decent and equitable government.
In the past nine days, there have been no major gaffes, which is good. Three events have transpired during that period, however, and they are not so good. FYI, the second is the Siena College poll and the third is the controversy involving the NYRA (New York Racing Association) over who will run horse racing and gaming in New York State. Today we discuss the first issue, the Dopp subpoena.
Darren Dopp, former communications director in the governor's office, was restored to the state payroll on Aug. 27 after having been suspended by the governor indefinitely (but for at least 30 days) on July 23. Dopp is now using his vacation time, and possibly his compensatory time. It is bruited about that he will be assigned to another agency or to an authority when his leave time is exhausted.
Dopp appears to be the L. Patrick Gray of Troopergate, (We will explain Gray later). He is now under serious investigation by the State Ethics Commission, the State Senate and the Albany County District Attorney. The partisan Senate will take its best shot at Dopp, hoping to maim his master, for whom a perjury trap is being prepared. On that matter, Dopp's testimony will be most important, whether it is true or not. (Rule 911 - plausible deniability, applies in cases like this)
In the pursuit of justice, of course, all Dopp's e-mails since January 1 were subpoenaed by the Ethics Commission, on Monday, Sept 10. As luck and legislation wouuld have it, the Ethics Commission goes out of existence on Sept. 22, to be replaced by a group appointed by Governor Spitzer. The chair of t he new commission will be John D. Feerick, former dean of Fordham Law School, who enjoys an excellent reputation for probity. The governor, when elected in November 2006 with 69% of the vote, also enjoyed a fine reputation. He had won the Democratic primary on September with 80% of the vote over the attractive Nassau County executive, Tom Suozzi.
BTW, the rule governing today's article is 16-E: "E-mail is evidence mail." We now proceed to newspaper reports on the issue of how Mr. Dopp would respond to the subpoena from the State Ethics Commission for his e-mails.
Times, Sept 13, SPITZER'S AIDE PLANS TO FIGHT ETHICS SUBPOENA, BY Danny Hakim, "Gov. Eliot Spitzer's communications director, Darren Dopp, plans to fight a subpoena issued by the Stte Ethics Commission earlier this week, according to his lawyer.... The subpoena we got was very broad, Mr. Dopp's lawyer, Terence L. Kindlon, said Wednesday (Sept 12) "It asks for a lot of information that isn't really mine to give, including correspondence with ink-stained wretches," Mr. Kindlon said, referring to reporters. "Prudence dictates that we ask a court to look at this and determine what is being legitimately requested." The move to fight the subpoena was reported by The Daily News on Wednesday.
News, Sept 12, 4:00 a.m. SPITZER AIDE DARREN DOPP IS TARGET OF ETHICS PROBE, By Joe Mahoney, Albany Bureau Chief. "Darren Dopp, the senior aide to Gov. Spitzer put back on the state payroll after a month's suspension for Troopergate, is a target for the State Ethics Commission probe of the dirty tricks plot. "Dopp has been sent an Ethics Commission letter giving him 15 days to provide a written explanation in response to suspicions he may have violated state law as Spitzer's communications director, according to his lawyer, Terence Kindlon, and a source close to the probe....
(paragraph six): "Kindlon, arguing the subpoena to Dopp is overly broad, said he'll try to quash it. "The subpoena asks for just about everything on the planet," the lawyer said. "Instead of a laser beam, it's more like a bright flash of light." He also said the subpoena could also raise First Amendment issues because e-mail exchanges between Dopp and Albany Times-Union reporter James Odato, among other journalists, are being sought."
Post, Sept 13. DOPP FLIP-FLOP ON ETHICS-PANEL SUBPOENA, By Fredric U. Dicker, State Editor. "A lawyer for Gov. Spitzer's newly reinstated communicatioons director, Darren Dopp, vowed yesterday to go to court as soon as today to fight a just-issued subpoena tied to the explosive dirty-tricks scandal from the State Ethics Commission. "I think what they requested is way outside their scope of authority", insisted Terence Kindlon, a well-known Albany criminal-defense lawayer.
Those stories appeared Wednesday and Thursday. We move one day forward, to Friday.
Times, Sept l4, SPITZER'S AIDES WON'T FIGHT SUBPOENAS, By Danny Hakim, "Private lawyers for two top aides to Gov. Eliot Spitzer said on Thursday that they would not find subpoenas issued by the State Ethics Commission. ... Mr. Kindlon, the lawyer for Mr. Dopp, said earlier this week that he would fight the subpoena because it was overly broad. But he said on Thursday that Mr. Dopp "feels that I am overly cautious as a lawyer, and he directed me to refrain from seeking to quash the subpoena, so we are in the process right now of assembling the documents that have been requested, and they will be delivered on schedule. Mr. Kindlon said neither he nor Mr. Dopp had discussed the decision with the governor's counsel or staff."
Post, Sept 14, ELIOT AIDE YIELDS ON E-MAILS, By Cathy Burke, "In a sharp turnaround a lawyer for an aide to Gov. Spitzer tarnished in Albany's dirty-tricks scandal said yesterday he won't contest a subpoena seeking months worth of e-mails. "I could not insist that he resist the subpoena" Terence Kindlon...said last night.
News, Sept 14, SPITZER AIDE DOPP AGREES TO DISCLOSE TROOPERGATE DOCUMENTS, By Joe Mahoney, "In a sudden reversal, Gov. Spitzer's sidelined communications director agreed yesterday to disclose all documents sought by state investigators probing an alleged plot to discredit Senate GOP Leader Joe Bruno. Darren Dopp's lawyer, Terence Kindlon, said his client overruled his advice to fight the Ethics Commission subpoena sent this week." ... "The panel is rushing to finish its Troopergate probe before it goes out of business Sept. 22."
The New York Sun did not prin stories either day on whether Dopp would comply with the subpoena. They did, however, on Sept 14, have a p1 article by Jacob Gershman, GOP STARTED TROOPERGATE, DARREN DOPP'S LAWYER SAYS. The article quotes Terence Kindlon at length, "accusing their former political strategist, Roger Stone, of concocting the entire state police scandal." Kindlon likened the matter to 'Swift Boat attacks on Senator John Kerry in 2004.
We believe that not only is the Kindlon accusation ridiculous, but Stone injured his client's cause by his obscene phone call to the Governor's father, after which Stone was summarily dismissed by Mr. Bruno. Like the governor, Mr. Bruno wants to be excused from the damage done by his employees.
You will note that Thursday's Post headline accused Dopp of a flip flop, but that was before he flipped, or flopped again, reversing his position and agreeing to comply. Fish, when caught, often flip, flop and flop again. The question is whether Dopp acted at the direction or suggestion of the governor, or whether his lawyer failed to consult with his client before going to the press with his message of defiance, or whether his client just chickened out, we don't know.
It should be pointed out, however, that the governor has resumed paying Dopp his $175,000 salary, after his five weeks on the beach left him out more than $16,000. During that period, the press pointed out that Dopp, who is 48, like the governor, has two children to feed and educate, and a mortgage to pay. At this point, he is unlikely to be in prime demand by the private sector after his misadventures, and, Mr. Spitzer does not have a foundation so large that Mr. Dopp could disappear within its bowels.
We are concerned that Mr. Dopp may be left to twist slowly in the wind. That was the phrase used to describe the fate of Patrick Gray, then acting head of the FBI, at the time of Watergate. It was published that Mr. Gray had deep-sixed some important documents in the Potomac River while driving across a bridge. No one wants a reprise of Watergate, which ended badly for the chief executive, who it turned out not only knew of the plot early on but probably concocted it. Mr. Gray may have acted as he did before the use of the shredder became common place, or else he feared that some one would reassemble the shreds.
We quote the Washington Post obituary of L. Patrick Gray, by Patricia Sullivan, published in July 2005 when Gray died at the age of 88: "Ehrlichman and Dean ordered the papers' destruction. Dean told Mr. Gray that they must not see the light of day. Ehrlichman suggested to Dean that the papers be dropped in the Potomac River, but Mr. Gray said he burned them in the fireplace of his Connecticut home. ... Mr. Gray was never indicted for any Watergate crimes, but he was indicted in connection with illegal break-ins in the homes of friends and family of Weather Underground fugitives in the early '70s. The charges were dropped in 1980."
The CNN obituary of John Ehrlichman, in February 1999, when he died at 73, reported that "Ehrlichman coined the phrase that became part of the nation's political lexicon when he advised Nixon to allow L. Patrick Gray III, then acting director of the FBI, to become the fall guy for Watergate, and to leave him 'twisting slowly, slowly, in the wind."
The irony in this situation is that, despite superficial similarities, Troopergate is no Watergate. In 1972, a crime was committed, burglary of a Democratic headquarters, with what was found to be the knowledge of President Nixon which he falsely denied until the White House tapes confirmed his guilt. In 2007, Senator Bruno, who had been grounded by Governor Pataki in 2006 for insubordination, and whose flying rights were restored by Governor Spitzer, used a state plane for activities Spitzer thought were primarily political, especially since Bruno had opposed him on legislative matters as he had opposed the lame-duck Pataki. So his staff asked the state police to check out whether the use of the plane was proper.
True, preparing reports for nonexistent FOIL (Freedom of Information Law) requests does stretch the envelope,as well as other aspects of the escapade, but the underlying purpose was legitimate, just as it would have been appropriatee to document Comptroller Hevesi's use of his state car for his wife any time over the past four years?. And how should the Governor track the Senator if he suspected wrongdoing? Should he have had to hire private detectives? It is not an unreasonable assignment for the state police to see if a public offical is misusing state resources. The Albany County district attorney found similar conduct to be a class E felony. And that decision just involved a car, this case is about an airplane, pilots and police officers - a much greater misuse, if it were proven...
However, as a result of the governor's hasty denial of any knowledge of his key staff's activity, the reprobate Senator has been able to shift the focus of the inquiries that are being undertaken. We have previously urged full disclosure, but it is possible that the governor knows things we do not know which makes such a course of action unfeasible.
In any event, we citizens will watch the drama play out, while commenting from time to time. This is an enormous distraction from state business, and it has weakened the governor to the extent that his decisions in other areas, such as who should run horse racing in New York State, may become suspect.
We sometimes think of ourselves as Shakespeare's soothsayer, trying to warn Julius Caesar of impending doom. The soothsayer's message, "Beware the Ides of March," went unheeded. Is Cuomo Cassius? Is Bruno Brutus? Two thousand fifty-one years ago (44 plus 2007), the emperor was struck down.
In any event, Caesar too had problems with the Senate.
#412 8.19.07 2058wds