Eliot Spitzer’s resignation is a tragedy in the strictest classical sense: The legal substance of his offenses pales before his stupidity, hypocrisy, and, yes, immorality in committing them. The legal substance pales also before the damage his character flaws have wreaked upon the public's need -- and, in his election 14 months ago, its hope -- for real government and market reform.

Since Spitzer, the former prosecutor and world-class public moralist, knew that high-priced prostitution rings often swim in organized crime and function as staging grounds for blackmail of prominent people, he has ended his public life perversely incarnating Henry Kissinger’s already perverse observation that “Power is the greatest aphrodisiac.”

But while Spitzer brought this on himself, that doesn’t let his Republican inquisitors entirely off the hook.

Their professional narrative is that the case simply fell into their laps and that they handled it with all due restraint: A routine bank review turned up “suspicious activity;” a routine follow-up by the IRS and then the Treasury Department’s Financial Crimes Enforcement Network showed that a public official was involved, thereby bumping the matter to the FBI and the U.S. Attorney, who obtained a wiretap of conversations which, of course, they had to listen to and parse. All they did after that was inform Spitzer, as the law also requires them to do.

And then they stepped back and watched him implode.

Not quite. Prosecutors were indeed required to tell Spitzer about the wiretap, but in no way were they required or indeed permitted to tell anyone else. Spitzer outed himself only after one or more of the dozen assistant U.S. Attorneys and scores of IRS, FBI, and other agents and managers in Washington and New York involved in this case committed the crime of leaking it to the New York Times.

Again, I am far from suggesting that that excuses him. I am asking a question or two about what else was going on, parallel to his own self-destruction.

Was the Justice Department as innocent and surprised by its findings as the official narrative insists? Will we now have the Justice Department moving heaven and earth to turn up its leakers? The legacy of George Bush’s disgraced former Attorney General Alberto Gonzales and of too many Republican U.S. Attorneys casts a long shadow here.

Beneath such shadows, it turns out, prosecutors have lust, too, as I learned years ago in watching “the Schumer case” unfold – a lust for scalps as urgent as Spitzer’s when he was New York’s Attorney General. And, yes, sometimes, they do overreach.

The Republican U.S. Attorney who sent Alabama’s Democratic Governor Don Siegelman to jail for 88 months in an outrageously selective prosecution that bypassed his Republican senatorial collaborators was only one of the miscreants under Gonzales.

And let’s not forget U.S. Attorney Rudolph Giuliani, of the same Southern District of New York that has just brought down Spitzer. Not to mention the overreaching in Suffolk County (NY) District Attorney Thomas Spota’s now-discredited conviction of Martin Tankleff for supposedly murdering his parents, and in Durham County (NC) District Attorney Mike Nifong‘s handling of the Duke Lacrosse case.

Now we are asked to trust the noble restraint of the current U.S. Attorney for the Southern District and the “new” Bush Justice Department. But “restraint” isn’t the right word. More likely, the U.S. Attorney’s office would look as ridiculous as Spitzer already does if it prosecuted him under the applicable but never-applied provisions of Mann Act or under laws against “restructuring” one’s payments to keep them private.

A knowledgeable insider cautions me that Spitzer’s indiscretions would have become public, anyway, if the Justice Department prosecuted the Emperors Club, as it would likely and properly do, given the criminal networks whose coffers these escort services usually enhance.
Emperors defense lawyers would surely “out” Spitzer as a client then:

“They’d howl if he got a pass. They’d say they were victims of selective prosecution. They’d lose on a pre-trial motion to dismiss on that basis, but only after Spitzer had been outed. And, under those circumstances the Fed would be made to look like they’d been corruptly trying to protect the governor.”

That’s why, according to my source, “In the three-dimensional chess game of criminal litigation, the government has to ‘out’ all the dirty laundry first and often, otherwise the defense wins, even if the defense’s subsequent outing of someone like Spitzer is purely tactical and irrelevant.”

“I know there’s a view that in a ‘victimless’ crime like this, the government could have just told Spitzer to knock it off and be done with it. But that’s just impossible for the reasons above, and it really has nothing to do with political posturing.”

In other words, the leak was justified? Should we think that it served a higher purpose? My inclination is to say that sometimes the perfect prosecution strategy is a little too much like a perfect crime – no proof of what was really done, or why. Sptizer's Greek tragedy has made that moot, or so it seems.

If the prosecutors exercised due diligence and restraint in this case, it’s still our job as citizens to exercise “due vigilance” by asking questions like mine, in light of recent offenses by prosecutors, as much as by governors.