Eliot Spitzer has resigned, with the same aplomb as he demonstrated by going after legitimate businesspeople who did nothing more than their normal job.  It showed a man who didn’t grasp that his “private” conduct was a violation of a public trust.  It showed a man who was still tough and brazen.  He claimed he was “taking responsibility” for his conduct.  That has yet to be seen.

Spitzer’s resignation was not a symbol of “taking responsibility.”  It was a political necessity rammed down his throat.  Holding public office is not a right, but a privilege.  He lost that privilege when he, especially he, placed himself outside the law.  But taking responsibility for the commission of crime means something entirely different.  After any criminal defendant and they’ll tell you all about taking responsibility.

Even though Dan Hull (who it terrific) thought the Spitzer resignation was “pitch perfect” and he’ll be back (presumably after he’s zipped his fly up), what I saw was a horrific display of fear, self-absorption and disingenuity.  Politically, Eliot Spitzer no longer exists, except as a bad New York Joke.

But our departed Governor is not yet out of the woods. 

Immediately after New York Governor Eliot Spitzer announced his resignation yesterday, U.S. Attorney for the Southern District of New York Michael Garcia issued an unusual statement: “There is no agreement between this office and Gov. Eliot Spitzer, relating to his resignation or any other matter.”

This is obviously intended to dispel any speculation that he resigned as part of a deal.  This is revealing for another reason as well:  The general deterrence aspect of any high-profile criminal defendant is never far from the prosecution’s thoughts.  What they do, and how they do it, impacts both the defense and the prosecution.  The legitimacy of prosecutorial choices is at stake here.  Michael Garcia’s announcement made it clear the he is aware of his responsibility, and that his decisions will be made accordingly.

So what happens next?  The media has been awash with silly and vague speculation.  There have been a few astute comments, but they are drowned out by the chorus of “former prosecutors” with nothing to say.   Much of the speculation is based on the fairness approach (“ordinary johns aren’t prosecuted so why should Spitzer?”) and the paid-his-dues approach (“He resigned, isn’t that enough?”).  Neither approach, in my view, is appropriately applied in this situation.

The latest spin effort is that this is a Republican effort to smear Democratic politicians.  Maybe so, maybe not.  It doesn’t matter, since Spitzer’s commission of a crime, if the case, rises above (falls below?) political considerations.  If it was a matter of partisan attack, then he would have been safe had he not engaged in criminal conduct.  If he did, then it doesn’t matter what motivated his investigators to find out.

With the  complaint and the search warrant affidavit in hand, we are able to put aside some of the rank speculation and focus on what Spitzer is really facing.  This is not a case about arresting the “john”, but about the commission of two federal offenses, money laundering (structuring) and the Mann Act, together with conspiracy to commit both.

The talk about what would happen to ordinary people is off base.  Beyond the fact that “ordinary people” aren’t governors, or self-righteous avengers of morality, the hard fact is that the government regularly prosecutes “little people” for money laundering violations.  It happens all the time, and there’s no reason to think that Spitzer would or should get a pass.

The Mann Act violations are far more rare.  It’s a somewhat archaic law, from the days when the idea of crossing state lines to take advantage of more lenient laws in other locales was more offensive.  But as the warrant affidavit shows, it was in play with regard to the primary defendants, clearly implicated in the way that prostitutes were shipped around to meet the needs of the clients.  It’s not at all surprising that the Mann Act was resurrected, given the Department of Justice policy to charge the highest provable crime.  But since it has been raised with regard to the operators of the escort service, it should be anticipated that clients who sought to have their dates cross state lines will bear the consequences as well.

And of course, there will be the obligatory conspiracy counts relating to Spitzer’s agreement with the primary defendants to engage in the illegal conduct.

The United States Attorneys office will prosecute Eliot Spitzer because it has no choice to do otherwise.  Neither pauper nor Governor can ignore the law, as it should be if the law is to have any integrity.  Given the scrutiny that this case has  and will receive, there can be no other outcome.