Monday, July 30, 2007

Is it Fair to Compare Eliot Spitzer to George Bush?

My FindLaw column for today notes the weird parallels between the respective abuses of law enforcement power and executive privilege controversies at the federal level and in New York State. (If you are not familiar with the NY issue, go read the column. Even if you are familiar with the NY issue, please read the column.)

The column's main point is to note the advantages of a separately elected---and thus independently accountable---Attorney General, as in New York. I explain that this "fractured" executive solves a problem for which there is no good solution at the federal level: How to address the inherent conflict of interest that arises when high-ranking executive officials are suspected of wrongdoing, without licensing an unaccountable special prosecutor? How, in other words, to prevent the Robert Bork problem (in his Saturday Night Massacre infamy) without creating the Ken Starr problem? Yes, I've deliberately chosen two conservative heroes as examples of the system run amok in opposite directions, not to irk my conservative readers---well, okay, not SIMPLY to irk my conservative readers---but because they really do exemplify the two dangers that seem to get traded off one another, or at least each did in his respective worst moment.

Of course, the column is especially likely to irk Democratic loyalists, or at least Spitzer loyalists, who think the idea of comparing Spitzer to Bush is outrageous. To be clear, however, I do not claim that Spitzer is as bad as Bush overall. Spitzer has not, for example, misled the people of New York into a disastrous war. And as I note in the column, even with respect to this one issue, Spitzer appears to have pretty quickly come around. Rather than protecting his loyalists, Spitzer has distanced himself from the people directly responsible and, after a bad start by his staff (and perhaps by Spitzer himself), seems ready to help the state legislature get to the bottom of the scandal. That's a clear difference with Bush, Gonzales et al.

Nonetheless, I draw the parallel in the piece because I think it's important to keep attention focused on what it was that was so wrong about the US Attorney firings, which is NOT the firings, but the use that the White House wanted to make of these US Attorneys before they were fired, and quite possibly did make of many of the other US Attorneys who weren't fired---namely, to set the nation's law enforcement priorities in a way that targeted the President's political opponents. And that is also what happened in New York. If State Senate majority leader Bruno had misused state resources, that would have been a legitimate subject for the state AG to investigate. It also would have been legitimate for the Governor's office to refer the issue to the AG. What was not legitimate was for the Governor's office to direct law enforcement attention to Bruno ON ACCOUNT OF the fact that Bruno is a political opponent of Spitzer. Because this is the main misdeed alleged to have been perpetrated by the White House in the plot that culminated in the US Attorney firings, the NY scandal really is directly parallel.