Spitzer's legal minefield

UNLESS ELIOT Spitzer's legal team negotiates a plea bargain before he is charged, the governor could face a novella-length federal indictment. How can it be, one asks, that an act as simple as a New Yorker meeting a prostitute in a Washington hotel room could engender a multicount federal indictment, especially since such conduct is seemingly a quintessential local, not federal, matter?

The reason is that the federal criminal code has become silly putty. Prosecutors are able to mold the law to cover almost anything. In recent years, we have witnessed a surge in federal indictments of average people whose actions were not instinctively criminal. If prosecutors were able to ensnare these normal white-collar professionals, they'll have little trouble and few qualms making a case against an unlikable and vindictive former attorney general whose professional lack of judgment matched his spectacularly bad judgment in his personal life.

Under a sensible system, Spitzer's worst legal problem would be a misdemeanor prosecution under the District of Columbia's prostitution ordinance. Spitzer undoubtedly wishes this was the case.

Instead, he could face multiple federal charges. Prosecutors may use the Mann Act, which makes it a felony to knowingly transport an individual in interstate commerce for "immoral purposes." Depending on precisely how he orchestrated his cash transfers for the requested services, Spitzer could be vulnerable under complex federal regulations that prohibit "structuring" cash transactions to evade a bank's legal obligation to report customers' cash activity totaling over $10,000.

Other options include old standbys like the notoriously ill-defined conspiracy, mail fraud, and wire fraud statutes. And if all else fails, prosecutors can thumb through Spitzer's recent press conferences for statements they consider misleading, as they did when they indicted Martha Stewart for, among other things, issuing a "false" press release concerning her insider trading investigation. It is a felony to make a "material" misstatement, whether or not under oath, to any of the millions of functionaries in the federal government, but prosecutors expanded on this notion when it said Stewart's release was a security fraud aimed at fooling investors.

The most elastic federal criminal statutes, in contrast to their more specific state counterparts, are pegged not to specific defined wrongs, but instead to the modalities by which acts are accomplished - such as using interstate commerce or communications, or the mails. Federal statutes criminalize means, while the ends are typically formless and without evident limitation. In this sense, defendants do not have to do anything intuitively and substantively criminal, as long as they accomplish whatever they do via the wrong channels. And those statutes that appear more substantive rely on concepts of fraud far more diffuse than traditional common law notions.

This phenomenon in federal criminal law explains a game that assistant US attorneys in the Southern District of New York used to play over beer and pretzels, according to a 2007 Slate.com article by Tim Wu. Someone would name a public figure. Then that person's colleagues would find statutes under which to indict that celebrity. "The crimes were not usually rape, murder, or other crimes you'd see on 'Law & Order,' " wrote Wu, "but rather the incredibly broad yet obscure crimes that populate the US Code like a kind of jurisprudential minefield: Crimes like 'false statements' (a felony, up to five years), 'obstructing the mails' (five years), or 'false pretenses on the high seas' (also five years)."

Sadly, this game has become very real. Stewart was convicted not for insider trading, but for lying to investigators about sales that almost certainly did not constitute insider trades. Scooter Libby was convicted not for revealing the identity of CIA agent Valerie Plame Wilson - not likely a federal crime under the circumstances - but for lying about his noncrime.

The accounting firm Arthur Andersen was indicted in 2002, not for false accounting for its client Enron, but for obstruction of justice for following its routine and perfectly proper file retention-and-destruction policies covering audit work papers. By the time the conviction was unanimously reversed by the Supreme Court, the firm had collapsed. When accounting firm KPMG was threatened with indictment before the Andersen corpse had cooled, it reversed a longstanding defense of the legality of tax shelters that the firm and experts earlier deemed lawful. Prosecutors made an offer KPMG could not refuse, so the firm is now cooperating against former partners.

In cases like Spitzer's, the pliability of federal law won't generate much outrage. Many look forward to seeing the arrogant governor get his comeuppance. But there is good reason to fear these weapons at the Department of Justice's disposal. Anyone active in the daily commerce of professional life is vulnerable.

Harvey Silverglate is a criminal defense and civil liberties lawyer. His forthcoming book is tentatively titled "Three Felonies a Day."

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