Above the Law?

Phillip Carter — Mon, 17 Mar 2008 11:54:00 GMT

What do Eliot Spitzer, Dickie Scruggs, and Tupac Shakur all have in common?

Ego and hubris, of course. But more specifically, a belief that they operated by different rules than the rest of us mere mortals. Not just that they could avoid being caught, or get out of trouble if caught, but that the law simply didn't apply to them because of their status. Each found this to be untrue in his own way.

In reading Chuck Philips' masterful profile of Shakur in today's Los Angeles Times, I was struck again by the shear volume of criminality in Shakur's life. Some of this was typical Hollywood illicit activity—sex, drugs, alcohol, etc.—and some was marketing or puffery which aimed to connect his music about the "thug life" with real acts of violence. But there's also a staggering amount of criminality that runs throughout many of the scenes in Philips' years of reporting on Shakur and the West Coast/East Coast rap rivalry: omnipresent weaponry; use of beatings to enforce contracts; bribery and extortion; and the list goes on. These are all crimes, but they were standard operating procedures for many of the principals involved because they believed they were above the law.

Similarly, Dickie Scruggs believed he lived on a higher plane than the lawyers around him. A well-timed Wall Street Journal profile paints Scruggs as even more mercurial and Macchiavellian than he appeared when played by Colm Fiore in The Insider—a movie dramatizing Scruggs' fight against tobacco companies. Scruggs won big by raising the stakes and waging scorched-earth litigation in the way that Sherman waged war by cutting a swath through Georgia from Atlanta to Savannah. But he also won by bending and twisting the rules, and shattering the friendships and alliances he built with other lawyers (including his own associates) in order to consolidate his winnings. This certainly wasn't the modus opperandi I learned in law school, nor in private practice, but it worked for Scruggs (for a while) because he was a billion dollar man who could simply buy his way out of tough situations. Until Friday, when he pled guilty to conspiring to bribe a Mississippi state-court judge in a battle with former colleagues over legal fees.

And then there's Eliot Spitzer—who fell into the net of federal law enforcement through means he was intimately familiar with as a former prosecutor who relied on things like "suspicious activity reports" to prosecute members of New York's financial community. Spitzer had to know both that his alleged sexual misconduct was unlawful, and that his financial transactions would raise eyebrows, but he paid no attention to those things. Spitzer spent years prosecuting other titans of Manhattan who felt they were above the law—but apparently the message never got through because he suffered from the same mistaken belief.

Pride goeth before the fall ...

Elliot Spitzer, Prosecutor

Adam J. White — Fri, 14 Mar 2008 02:32:00 GMT

Amidst Elliot Spitzer's dramatic meltdown, most attention seems to be focused on his personal scandal and his troubled term as governor. To me, Spitzer's legacy as attorney general is the much more compelling issue. While I was not a fan of much of his work, I was by no means a reflexive opponent of all of his efforts. Similarly, while I never took his invocation of federalism at face value, I still think that it would be an error to dismiss his assertion of state power out of hand.

Reading ex-prosecutor Andy McCarthy's insightful take on Spitzer this morning, I recalled Robert Jackson's famous address to the U.S. attorneys. Nearly 70 years later, Jackson's speech—"The Federal Prosecutor"—fit Spitzer's political funeral:

... The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. ... While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

***

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. ... We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.

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In times of fear or hysteria, political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.

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The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.

Convictions : Elliot Spitzer

Above the Law?

Elliot Spitzer, Prosecutor