*JUDICIAL FORUM*
Please join us this Thursday evening, March 13th, at 6:30 PM, for our Judicial Selection Forum on at the Museum of the City of New York. The Museum is located on Fifth Avenue (between 103rd and 104th Streets). Enter on 104th Street for the forum.
Please RSVP with Bison at 212 564-4441, or email him at bison@nycivic.org
Death Watch for Spitzer?
Press Predicts Resignation
Are They Plea Bargaining?
NOTE: This is a really long article (2835 words), with a lot of history and politics in it. Read it at your leisure, not at work. If you have any questions, ask us..
By Henry J. Stern
March 11, 2008
This is a more comprehensive version of an article that appeared in today's New York Sun. To read the column as published, link here.
In writing about the crisis caused by Governor Spitzer's dalliance with a very expensive prostitute, we find ourselves overtaken by events.
At this time, we do not know for certain who will be governor tomorrow, and we will not make predictions that may turn out to be mistaken by the time you read this. We write about what we know this afternoon.
First, Governor Spitzer is somehow a more appealing figure in humiliation and defeat than he was when he preened at the peak of his power and popularity. That was January 1, 2007, the freezing but sunny day he was inaugurated in West Capitol Park in Albany. That was Day One - Everything Changes, according to Spitzer's slogan. By that calendar, counting days from the time of the accession, today is Day 436.
The relevant historical analogy comes from the French Revolution. The convention met on September 20, 1792 and became the new de facto government of France. The next day, the monarchy was abolished and a republic declared. That day, 9/21/92, became Day One under the French Revolutionary calendar, which also renamed the months of the year after the seasons, rather than Greek and Roman gods. According to Wikipedia, this calendar was used from 1793 to 1805, and again for l8 days in 1871 by the short-lived Paris commune after the French lost the Franco-Prussian War.
Mayor Bloomberg, on the other hand, has LED (light-emitting diode) clocks in the City Hall bullpen and in his commissioners' offices indicating the hours, days and minutes remaining in his administration. They are intended to remind people how much time they have to complete their work. Today, for example, 660 days remain, (295 plus 365). How many days remain for Governor Spitzer is impossible to predict. His term will expire in 1025 days, but whether he will be able to continue in office is in grave doubt.
As most of our readers know, we were extremely disappointed in the governor's first year for many reasons described at length in previous columns which are available on our home page at www.nycivic.com. We need not repeat the tale of errors in judgment, reversals of policy, foolish remarks and insults which characterized his conduct in 2007.
Throughout the year, however, we hoped for a change in behavior and described Governor Spitzer as the best hope for progress in New York State. We observed improvement this year, noting his more businesslike relations with other public officials, even Senator Bruno, against whom he had conducted a personal and political vendetta.
By the state's creaky Constitution, however, if the governor resigns and the lieutenant governor succeeds him, the next in line will be the temporary president of the senate, none other than Mr. Bruno. The law does not require the holding of an election to fill the vacant position of lieutenant governor, and the last time the position was vacant, during Governor Cuomo's first term, it was left unoccupied for almost two years.
In the Democratic primary, candidates for governor and lieutenant governor run independently. The two winners are joined in a ticket, and voters can only choose between tickets. In 1982, Mayor Koch ran for governor, allied with Alfred DelBello, Westchester county executive. Mario Cuomo, at the time lieutenant governor himself, ran for governor with Carl McCall as his running mate. The voters selected both Cuomo and Del Bello for the ticket, not ethnically balanced but reflecting their preferences. After two years of relative inactivity, DelBello resigned as lieutenant governor to take a job in the private sector, saying that he was bored because Governor Cuomo had not given him enough to do.
For purposes of ticket balancing, lieutenant governor became a job that was generally given to a woman or an ethnic minority.
In 1970, Justice Arthur Goldberg's running mate was Basil A. Paterson (father of David). They lost to Nelson Rockefeller and Malcolm Wilson.
In 1974, Brooklyn Congressman Hugh Carey chose upstater Mary Anne Krupsak as his LG candidate. They won, but soon had a falling out.
When Krupsak challenged Carey unsuccessfully in the 1978 Democratic primary (reportedly on the advice of her counsel, the late former City Councilmember Robert Dryfoos), that created the vacancy Carey filled by promoting Cuomo, at the time NY's secretary of state, which is a relatively minor administrative post with an historic name. In 1982, as described above, Cuomo was forced into partnership with DelBello.
In 1986 he chose Congressman Stanley Lundine of Jamestown (that is far away, southwest of Buffalo). Lundine hoped Cuomo would become President or a supreme court justice so he could be governor, but, alas for the ex-Congressman, that was not to be. The plane which idled at the Albany airport on December 21, 1991, waiting on the tarmac to take Cuomo to New Hampshire to file in their early 1992 primary, had to take off without its passenger. Today Lundine, 69, chairs a commission studying local government reform in New York State, by appointment of Governor Spitzer.
Forward to 1994, Pataki challenged Cuomo, who was seeking a fourth term. Pataki wins with Betsy McCaughey (then Ross) as his running mate. She rebels with a cause, and is consequently dropped from the ticket, replaced by an upstate woman judge, Mary Donohue, who served for Pataki's second and third terms. As the end neared, she was nominated for the Federal bench by President Bush but not confirmed, so Governor Pataki appointed her to the state's Court of Claims.
In 2002 when Carl McCall lost for governor, his running mate was Dennis Mehiel, a ticket-balancing white businessman from Westchester. In 2006 Attorney General Spitzer chose as his number two State Senator David A. Paterson (son of Basil). The other candidate for the Democratic nomination was Leecia Eve, daughter of former Deputy Assembly Speaker Arthur Eve of Buffalo. Ms. Eve is currently a senior policy advisor to Senator Clinton.
Not since 1973 has an LG filled out a governor's term, and then it was only because Nelson Rockefeller resigned after fifteen years to give his second, Malcolm Wilson, a chance to become known statewide. Sadly for Wilson, 1974 was the year of Watergate, and things went badly for the GOP, Governor Wilson lost to Carey.
Unfortunately, whoever is chosen by the legislature to fill a vacancy in the office of comptroller or attorney general serves for the entire balance of a four year term. When Alan Hevesi was forced to resign before he was even sworn in for a second term in 2007, the Speaker and his colleagues selected Assemblyman Thomas J. DiNapoli to succeed him for the full four year term, expiring on December 31, 2010. It would appear more democratic for the legislature's appointee to serve until the next general election, after which the public could elect a successor for the remaining part of the term. As it is today, the successor is in fact chosen by the Speaker of the Assembly, Sheldon Silver, since there are many more Democrats than Republicans when the two houses meet jointly. However, the legislature makes the laws, and the legislators write the Constitution, so we do not have elections any more often than quadrennially.
When US Senators, Congressmembers, State Senators or Assemblymembers die, retire or go to jail, their positions are filled by special elections, so their constituents will not be denied representation. The same holds true in New York City for the mayor, comptroller, public advocate, five borough presidents, five district attorneys and 51 city council members. The governor may appoint a United States Senator to fill a vacancy, but he/she will serve only to the next biennial election. The self-serving state government carves out an exemption from prompt elections. Under the city charter, nonpartisan elections to fill vacancies are required within sixty days.
With lieutenant governors chosen for political reasons unrelated to their ability to serve as governor, perhaps it is time to elect a new governor for a two year term if a vacancy occurs during the first two years of a governor's four year term. The old lieutenant governor, who will have become the governor, will certainly be in a favorable position to seek re-election. However, if the voters dislike him/her, or disapprove of their political party, or their actions in office, or find the governor to be stupid, corrupt, indiscreet, megomaniacal, or any combination of the aforementioned deficiencies, they will have the opportunity to elect a governor more to their liking, rather than being stuck with a running mate for up to four years. This seems to us to be more responsive to citizens' choices than to political party officials. This would be particularly true if the position of lieutenant governor had been sold or bargained away to someone who was not considered competent to be governor.
The tragedy of the Spitzer administration is that he was elected just sixteen months ago with such hope for reform. He had met with good government organizations in Albany and showed far more concern for their issues than the masters of the legislature had ever displayed. His record as Attorney General was considered quite good, although admittedly not too closely watched, as long as the left and the media felt that he was going after bad guys. His credentials were first-rate, although not subject to the most scrupulous examination. Before his campaign for attorney general, he was active in moderate organizations, although he turned left when he saw that was the way to climb the political tree (aka the greasy pole) in New York State.
One thing we would like to know is how the investigation was launched. Today's Times, in a fascinating story by William K. Rashbaum on pA1, REVELATIONS ABOUT GOVERNOR BEGAN IN ROUTINE TAX INQUIRY, wrote: "[I]nvestigators conducting a routine examination of suspicious financial transactions reported to them by banks found several unusual movements of cash involving the governor of New York, several officials said." Did the bank know that the transactions involved Governor Spitzer? Did they report every cash transaction involving four-figure sums? Was anyone out to get the governor? The FBI calls the scrutiny 'routine'. Was it really that? Rashbaum has another article on pB4, THE METHOD OF PAYMENT MAY DECIDE ANY CHARGES. The lede: "After decades as a prosecutor, Gov. Eliot Spitzer on Monday found himself involved in a criminal investigation from a different perspective."
At this point in time (a phrase we learned from Watergate), the likelihood is that the governor's attorneys are in contact with federal prosecutors in an effort to avoid indictment and a trial. The alleged crimes appear more closely related to his effort to conceal the trysts, rather than any activity that took place between Kristen and Client No 9.
The question is what the US attorney will demand of the governor in order to avoid an indictment, followed by a trial, probably on felony charges. Resignation as governor is a likelihood, disbarment a possibility, pleading guilty to a misdemeanor or a felony, payment of a fine, probation, etc. If Spitzer fails to accept this plea bargain, the US attoney, with clearance from the Attorney General of the United States, can indict and proceed to prosecute.. This would not be a desirable result for either party, and we predict they will try to reach agreement. But Spitzer will not yield his office easily, and depending to some extent on his wife's wishes, may choose to tough it out. He has the example of Bill Clinton to give him courage and fortitude.
High-end prostitution is a relatively victimless crime, and the Mann Act, passed in 1910, is an attempt to get federal jurisdiction of what is primarily, buts not always, a local offense. Congressman James Robert Mann, Republican of Illinois, eponymous with the act, intended to punish what was called 'white slavery', usually involving threats or the use of force. A voluntary train trip, taken by a woman seeking a $4300 fee for a few hours work, is not, we believe, what Congress had in mind a century ago. The money laundering laws were mainly intended to fight gangsters, dope dealers and terrorists, not to pick up clumsy johns who were public officials. But Attorney General Spitzer used the Martin Act in a novel way to pursue his goals.
Nonetheless, the governor clearly did wrong - he admits that, which is rare - and the issue is what the expiation should be. We intuitively dislike lynch mobs, even for people who deserve punishment. We also know that adultery, which is what this is essentially about, is rampant in Albany. The Bear Mountain Rule, "what happens north of Bear Mountain stays north of Bear Mountain" is widely observed to keep New York City spouses unaware of their mates' activities on cold winter nights and warm spring days.
We don't like what the governor did - we do like his family a great deal - and we don't like the Republicans pursuing him for partisan advantage. We will watch as events unfold, with sympathy for the man who has been notoriously unsympathetic to others. The name of the game should not be revenge but justice.
The likelihood is that the governor will go, sooner or later, because of pressure from the courts, the media, and his former friends who will flee his sinking ship. In the meanwhile, our sympathy is with the lobster in the pot, rather than with those who are waiting to chomp down on him. Sadly, when he asks how he got into the pot, he has only himself to blame. He is neither a hero or martyr, he is not even a "gay American."
Spitzer's basic problem was that he could not participate in a system in which power was shared - with the Senate and the Assembly, with special interest groups (now euphemistically referred to as stakeholders), with county executives, mayors (one in particular), and with others with whom he had to deal. His attitude ranged from intimidating and denouncing people to surrendering to them. It comes down to a missing link between great intelligence and the ability to convince others, without the threat of criminal prosecution, to act as he wished for the common good.
In the end, it came down to a personal weakness rather than the lack of political skills that led to his undoing as a public person. But why would any rational individual engage in the course of conduct he followed repeatedly? Even if the FBI had not been in on the case, which he could not have anticipated, he was exposing himself to blackmail or extortion. Other people might observe him (he is not an anonymous figure). The astronomical price he paid for services received could not immunize him from detection by others.
What temporary gratification can justify risking one's reputation and a lifetime of work? We know that public officials risk assaults and assassination by their enemies or by psychotics. Those are risks that come with the profession. But the governor's wounds are clearly self-inflicted, and that is clear to all.
This situation is not comparable to Governor McGreevey's gross misconduct in putting his boyfriend on the state payroll as director of homeland security. There are no state decisions or appointments involved here, nor any significant misuse of resources (we don't know all the details). Nor do we wish to compare cases with those of other high elected officials who have been involved from time to time in similar relationships. We know that the governor is far from alone in his desires, and that the number of undiscovered relationships exceeds the few brought to public attention.
To us, this is all very sad. We disagree with a learned journalistic colleague who sees the governor as a psychopathic monster. He has quirks, they all do, but his are aggravated by the enormous power he holds. We wish all the Spitzers the best in dealing with this difficult situation. Enjoy the better parts of life, and remember this is not your fault.
It is astounding to learn once again how the human brain, in many cases, is unable to control the desires of the human body. But that is simplistic, it is really one part of the brain that cannot or will not control the impulses of another part. This is the way many of us are made. What varies between people is the nature of the impulses that the reasoning part of the brain is unable to manage. And we have long believed, without any scientific authority, that the more intelligent the person, the more the strains that may warp the personality in any of a number of ways. Sometimes it seems to come with the territory.
None of us is perfect. But all of us have a moral obligation to do our best. That includes understanding of those who failed, and gratitude if our flaws do not include theirs.
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