Tuesday, March 02, 2010

Come Back, Eliot Spitzer

By Mike Dorf

What are the informal norms governing the circumstances under which an elected official should resign in the face of a sex scandal? Consider the latest oddity from New York State. Although he has announced that he will not seek a second term, NY Governor David Paterson is adamant (for now) that he will not resign his post in the wake of revelations that state troopers--perhaps acting at the governor's behest--dissuaded a woman from seeking a protective order against David Johnson, one of Paterson's top aides. It's possible, of course, that Paterson is completely blameless in the Johnson matter, but given that the Johnson story was the immediate impetus for Paterson's abandonment of his election plans, that seems unlikely. So for my purposes, I'll count Paterson in the guilty-of-something-but-not-required-to-resign category. Given how Paterson came to be Governor, that is quite odd.

Eliot Spitzer was caught going to a prostitute. That showed Spitzer to be a cad (and given how much he paid, perhaps a mark as well!). And it was illegal. But unlike the accusations against Paterson, Spitzer's scandal did not involve the abuse of official power. In this regard, Spitzer is also worth contrasting with Bill Clinton, whose affair with Monica Lewinsky was both inherently exploitative of his status relative to her and involved White House staff (remember Betty Currie) in the cover-up. Yet Clinton, like Paterson, got to serve out his term. So, was Spitzer's decision to resign a mistake? Having engaged in behavior not as bad as Clinton or Paterson (if the allegations prove true), and no worse than SC Governor Mark Sanford's hiking of the Appalachian Trail, shouldn't Spitzer still be in office?

Is Bob Livingston the better precedent for Spitzer? Recall that Livingston stepped down from his position as Speaker of the House (but retained his House seat) before his term even began because of the revelation that he had an affair. Unlike Paterson (who, bizarrely enough, came into office admitting that both he and his wife had previously had affairs) and Clinton (whose philandering was an open secret) both Livingston and Spitzer faced hypocrisy charges. Having been a vocal critic of Clinton's extra-marital affair, Livingston had little credibility when his own was revealed. Turning them around, Livingston gave up the Speakership and challenged Clinton to give up the Presidency. Similarly Spitzer--who had used the resources of law enforcement and the bully pulpit to attack prostitution--was revealed as a hypocrite.

But apparently hypocrisy alone isn't enough to warrant immediate resignation. If it were, then various social conservatives who have preached family values would have resigned their offices upon the news of their respective sex scandals. Yet Sanford, David Vitter, Larry Craig, and John Ensign all held onto their offices after their scandals broke. Only Mark Foley had the decency to resign pronto, and he was the least socially conservative of the lot. So hypocrisy alone cannot explain who resigns and who stays on.

All of which leads me to consider one or more of the following:

1) The threats of impeachment against Spitzer were more serious than the threats of impeachment or other means of removal for others. This fact, if it is a fact, only raises the question of why that would be, to which part of the answer might be that Spitzer's scandal broke early in his term and governors are more visible than legislators.

2) There's more to the Spitzer story than meets the eye. I would have gone with this one a while back, but Spitzer has clearly raised his profile lately, which is not something he likely would have done if he were worried about more details coming out (unless he's a reckless fool, a possibility one can never overlook given the behavior of say, Gary Hart, Bill Clinton, John Edwards, etc. etc.).

3) Spitzer simply blew it. He should have weathered the storm and had he done so, he might now even have a shot at re-election. After all, Marv Albert's network banishment only lasted two years, and Client 9 never bit anybody.


Michael C. Dorf said...

Fair enough--and note that Sarah Palin had her own version of Troopergate, as did Clinton as Governor of Arkansas. Perhaps this is simply something governors pretty quickly feel entitled to do, in which case we file this under "power corrupts."

Neil H. Buchanan said...

[Different Neil here]: It's also worth remembering that the consequences of scandals and resignations extend beyond the office of the particular scandalized politician. The worst part of Paterson's tenure remains his selection of Gillibrand to fill Hillary Clinton's U.S. Senate seat. Once she was selected, the power structure has done everything possible to scare off challengers. And thus we are left with a D'Amato protege and gun lobby endorsee as the Democratic Senator from New York. As Maureen Dowd put it, when she pointed out that Robert F. Kennedy's former seat is now occupied (by fiat of a Democratic governor) by a conservative gun-rights advocate: "Gross."

AF said...

Spitzer's scandal was more serious than the others you mention because he was under federal criminal investigation for structuring payments to the prostitutes, as well as facing state prosecution the for prostitution itself. I believe his resignation was partially in the nature of a bargain with federal prosecutors; it allowed him to argue that he had already paid a steep price and charges should be dropped, which they ultimately were.

Spitzer's hypocrisy was also more acute. He made his career as an aggressive, show-no-mercy law enforcer. The scandal -- not so much the sex as the law-breaking and structuring of payments -- completely undermined the moral authority that was a necessary to this approach.

That alone would probably have made it necessary for him to resign, but the erosion of political capital mentioned by Neil made it a no-brainer.

Michael C. Dorf said...

In response to AF: At the time, I thought the structuring was a major issue as well, but apparently the feds concluded that he had not committed the sort of offense that, under their normal standards of prosecutorial discretion, would warrant federal prosecution. That conclusion was reached, it has been reported, without a deal.
See http://tinyurl.com/69ecn3

AF said...

Professor Dorf: Fair enough, but of course Spitzer's decision to resign was made "at the time" as well.

Also, the expert quoted in the article you link to says that Spitzer's decision to resign would have factored into SDNY's decision (I'd quote it but either nytimes.com or Firefox isn't letting me.)

Craig J. Albert said...

Spitzer was supporting the New York economy. Doesn't he get any credit at all for bringing a New York hooker to DC?

michael a. livingston said...

Two points:

1. I'm not related to (the relevant) Bob Livingston

2. I think the Paterson scandal is much scarier than Spitzer. Spitzer just couldn't control himself. What Paterson did is such a clear, calculated abuse of power that it's hard to see how he can continue to hold office, let alone be reelected. If the Dean of a law school tried to pressure, or used university police to try to pressure, a student into dropping a sexual harassment complaint--let alone a one involving a violent attack--I don't think there is one American law professor who would say they could continue in office. This is really a new low, even for NY.

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good article professor this is fair enough i think
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