The case for prosecutorial hypocrisy?

Yesterday, I opined that what's happening to Eliot Spitzer couldn't be happening to a nicer guy. That's because he's part and parcel of the system that did and does to people the very things that are now likely to be done to him.

Roger Kimball (via Glenn Reynolds) questioned whether Spitzer is a genuine hypocrite, and wondered whether hypocrisy should be the horrendous sin that so many people make it.

While falling short of one's own standards might be a form of hypocrisy, it would be impossible to have any standards at all if we did not fall short of them. If I decide not to engage in a personal vice again, and then I slip up, that does not make me a hypocrite unless....

Unless what? Do I have to proclaim my personal standard in order to be tarred a hypocrite for violating it? In writing this blog, I try to avoid ad hominem attacks and personal insults, and I'm prone to complain about the use of attack phraseology -- in politics and in blogging. Yet, certain over-the-top people can push me over the edge, and I can't resist occasionally doing what I normally condemn. Hypocrisy? Sure. I admit it. I violate my standard. But that's what a standard is for. It's a gauge, a yardstick to determine how close I come to a goal.

If we look at the word, it becomes clear that the concept of hypocrisy is not an "either or" absolute one, but is related to the degree of sincerity involved in approaching or upholding the goal, as well as the loudness of the claim that is believed in and upheld. Once again, my dictionary:


And here's "hypocrite":


Clearly, there are degrees of hypocrisy and hypocrites. Someone who admits to shortcomings but nonetheless believes in a standard which he nonetheless violates is far less of a hypocrite than someone who maintains that he is absolutely pure but doesn't believe in the standard he claims to uphold. Because hypocrisy involves putting on an act, those who never disclose or discuss their personal standards of behavior would seem to be at little to no risk of being guilty of hypocrisy for violating them. The word seems to be aimed primarily at:

  • the proclaimers of standards; who
  • don't believe in them; and
  • don't uphold them in their personal lives.
  • In Spitzer's case, we have an even more extreme and egregious example, for he is a man who is more than a proclaimer; he is an enforcer who has sent people to prison for violating the standards he himself violates. (As Glenn Reynolds put it, "he was paying 'em while he was prosecuting 'em." Like a vice cop who sells drugs.)

    The only unknown in all of this is whether he believes in these, um, standards.

    If he does not believe in the standard he has not only violated but sent people to prison for violating, then yes, he would appear to be an extreme hypocrite according to the dictionary definition. Quite possibly the most extreme hypocrite possible.

    This, of course, assumes that the word means something. As best I can determine, the endless tug of war over hypocrisy seems inextricably intertwined with the tug of war over morality itself.

    Whether any of us like it or not, hypocrisy has become the ultimate "morals charge" to be used by the "immoral" against the "moral." I place these in quotes because it is not clear that society agrees upon common, shared moral standards -- at least, not in sexual matters. (Ask whether homosexuality is immoral, and you'll get a wide range of often very passionate answers.)

    People who don't believe something is sexually immoral are in a collision course with people who think the opposite. But when the latter are caught doing what they consider to be immoral, those who reject the sexual morality standard are likely to be very ferocious in their condemnation, and see "hypocrisy" as their ultimate moral yardstick. (Yesterday I heard Sean Hannity loudly denounce prostitution as immoral -- as a crime against the family -- and I naturally wondered what would happen to him were he caught using the services of one.)

    Is paying for sex immoral? If so, why? Is it the act of sex which is immoral, or is it the paying for it? Because sex carries with it the possibility of substantial emotional entanglements, paying for it would seem to allow male gratification (something which used to be called a "release") without entanglement or commitment, theoretically by mutual consent. There was a time not long ago when respectable society regarded prostitution as a necessary evil, and looked the other way. In some places it was not illegal. Most cities had "red light districts" which were delineated as such, known to the police, and tolerated, but watched to make sure they didn't make trouble. Women unwilling or unable to have sex with their husbands saw brothels as providing a "release" in a manner far preferable to -- and far less hurtful than -- an affair. (With single men, there's even less guilt, and no one theoretically hurt.)

    This will sound ironic, but in the days when prostitution was legal, it was considered immoral. Yet now, despite the apparant lack of modern agreement on its immorality, prostitution is more illegal than ever before. The rise of the modern age caused the brothels to disappear, to the point that nowadays -- even though society is considered to be in a moral freefall -- paying for a prostitute is not merely an offense against morality, but a serious crime which can involve federal money laundering and even "conspiracy" charges.

    No, I am not kidding. Today's Wall Street Journal explains in appalling detail:

    Prosecutors are considering charging Mr. Spitzer with violations of the Mann Act, which bars transporting people across state lines for prostitution. Other possible charges could include structuring transactions to evade financial-reporting requirements; violating bans on interstate travel with intent to commit a crime; and helping an illegal entity to launder money. Some of the charges carry prison terms of more than five years.
    Many would argue that only "high profile" cases like Spitzer's would merit that kind of prosecutorial attention. But the laws are there to be used against theoretically anybody, and Spitzer was just the kind of guy who used to use them.

    Laws that start out as one thing have a way of morphing into something completely different, and completely monstrous. Despite our comfort at seeing Spitzer get a dose of his own medicine, we are all at risk. RICO was passed as to give prosecutors a "valuable tool" to go after organized crime. Today it can be used to prosecute members of a country club playing penny ante card games. When the 1099 laws were passed decades ago, I was outraged that I would have to report anyone I paid more than $600.00 to the IRS, but my accountant told me not to worry -- that the law would only be used to go after the "big guys." Oh really? Today it can be used to go after anyone. Your money is not yours, as it is under the supervision of the federal government, which requires banks to report nearly anything they might consider suspicious.

    Even attempts to follow the letter of the law are reported as suspicious:

    At least one suspicious-activity report was filed on the three wire transfers initiated by Mr. Spitzer in 2007, said the people familiar with the transactions. But the transfers don't appear to have explicitly violated banking regulations: Mr. Spitzer didn't disguise his identity, and the three payments of roughly $5,000 each are too small to automatically trigger federal reporting requirements. However, Mr. Spitzer could face legal jeopardy if two $5,000 payments were an attempt to divide a single payment of $10,000 or greater, thereby evading the federal threshold for automatic transaction reporting by banks.
    I remember when "money laundering" involved things like the Cali cartel. Now it's simply the payment of money for anything illegal. Hiring a prostitute can be money laundering, as can buying illegal drugs for personal consumption. (That was what Limbaugh found himself up against.)

    The law continues to evolve as we speak. Already, there's talk of charging ordinary clients of prostitutes with criminal conspiracy:

    Ms. Hirshman -- a former assistant U.S. attorney in Manhattan -- also argued that if federal prosecutors brought charges against Mr. Spitzer, they would be required to similarly charge the nine other unnamed clients in a federal complaint unsealed last Thursday, to avoid what's known in legal circles as "selective prosecution." None of the other nine unnamed clients have been charged in the case.

    "Historically, 'johns' haven't been prosecuted for conspiring with principals of a prostitution entity," says New York defense lawyer Gerald Lefcourt, who isn't involved in the case. "Could they be? Maybe. But that's not the way law enforcement has proceeded."


    At this rate, pretty soon if a man takes a woman out to dinner, wines her and dines her, and maybe gives her a nice present and then finally the two of them have sex to consummate the deal, they could both be charged with conspiring to circumvent the money laundering laws by engaging in sham barter exchange in lieu of money.

    I can understand why ordinary citizens love it when guys like Spitzer get caught up in a monstrous machine of their own making. When everything is illegal and everyone is guilty, the charge of "hypocrisy" offers at least small comfort to them. However, it avoids looking at the larger problem, which is that we are almost all guilty of one crime or another, and our freedom is conditional -- subject at all times to the whims of federal or local prosecutors.

    During the hoopla over the Jena 6 case, I was struck by a particularly truthful admission by the Jena District Attorney:

    I can make your life go away with the stroke of a pen.
    Indeed he can. Any prosecutor can.

    Of course, we all know that he is guilty too, and it's a "there but for the grace of God" situation. ("The grace of the gods" might be more appropriate, as this all resembles pagan theater.)

    When everyone is guilty, morality or immorality become irrelevant. Why, that check you wrote to pay the guy who cut your grass might have been a payment to an illegal alien or a deadbeat dad, and you too could be a conspirator of structured transactions, and a launderer of criminal funds!

    The problem is not Spitzer; the problem is that society is being Spitzerized.

    I was wondering about something, though. What if the charge of "hypocrisy" is the only form of morality ordinary people have left as a psychological defense against growing and uncontrollable tyranny?

    Should we keep it?

    MORE: According to both Fox and CNN, Spitzer is about to announce his resignation.

    Had he been a Republican, this would have been a bigger scandal, of course -- and the charges of hypocrisy would have been infinitely louder.

    It's a shame for the Republicans that Spitzer can't tough it out, and hang in there, because the juicy details, the pictures, the interviews with Kristen, etc., could have been depended on to last through the election.

    MORE (11:45 a.m.): Spitzer has resigned, effective Monday.

    It was a carefully scripted apology.

    UPDATE (03/13/08): Regarding the debate over why Spitzer would employ a prostitute (when he has "heaps of women throwing themselves at him"), Ann Althouse sees obvious advantages:

    ....It seems to me there are many obvious advantages. You save an immense amount of time and complexity by substituting an economic relationship for a personal one. It's dangerous to do something illegal, but it's also dangerous to create a relationship with someone who becomes emotionally attached and might do all sorts of reckless things.
    This is why sex with prostitutes is traditionally seen as less of a betrayal than a genuine affair.

    Why so many of the modern moralists can't understand that, I don't know. But many of them also see obtaining a release through pornography as a betrayal, and one that damages families. Depending on the circumstances, I suppose it could be. But shouldn't the determination of betrayal be up to the affected spouse?

    posted by Eric on 03.12.08 at 09:46 AM


    The notion of hypocrisy and our western cultural attitude toward it in our own behavior and in our fellow humans seems to me complex and healthy. We condemn and reject as unacceptable certain behaviors that we have decided fall short of some standard that we consider important, but we accept the failure in the individual as human and forgivable.

    This gives attention to one of the great differences i see between western culture and Islamic culture which has been highlighted in all the conflicts since 9/11. Islam appears not to acknowledge and accept and forgive human failings and this results in violence that is accepted in Islamic circles but not in western society.

    There is not a difference in the underlying hypocrisy in the two cultures but only in the subsequent reactions. To me, our western approach is far superior in its humanity.

    Bob Thompson   ·  March 12, 2008 10:27 AM


    I am confused about how to apply the word hypocrite as it applies to the one who professes and believes in the standard but violates it versus one who professes but does not believe and violates it.

    Bob Thompson   ·  March 12, 2008 10:40 AM

    Indulge me, please. I keep feeling that I have one more thing to say.

    I think Spitzer is a hypocrite and his actions are enough to remove him from any position of high trust as a government official. I cannot say that he has done anything criminal. Maybe a technical violation of the Mann Act. But that violation, in my opinion, should not be a criminal act since its a moral issue involving consenting adults. His structuring of the financial transactions was probably just designed to keep his secret and not with any criminal intent, The worst thing he has done is to his wife and children.

    Bob Thompson   ·  March 12, 2008 10:57 AM

    So, it's okay for him to commit financial fraud through shell corporations, as long as he's willing to enforce the laws against financial fraud? What makes you think that he was good at enforcing the laws during his vindictive pursuit of various corporate chieftains that he deemed to be his enemies? He had a pretty good track record of filing high profile charges against them, having highly publicized pressers, smearing the corporate chiefs, driving stock prices down, extorting civil settlements out of the corporations, then dropping charges.

    Seems to me that hypocrisy is the least of Spitzer's problems, abuse of power is a big one. Is it okay for a guy who fights abuse of power to be hypocritical and abuse his power to do so? I think it's not, and the state legislators - who were followed around and targeted by state troopers at Spitzer's direction - would probably agree with me.

    Bottom line is I think the guy's an utter SOB, and it's a mistake to draw *any* political lessons from what he did or his downfall. Sometimes a cigar is just a cigar.

    Al Maviva   ·  March 12, 2008 1:52 PM

    Both Dr. Sanity and neoneocon have written about shame vs. guilt, and I recommend them to you. In shortest form, shame is about the embarrassment of being caught, guilt is about the embarrassment of having done wrong.

    One dividing line for hypocrisy is humility or self-honesty. We all put our best foot forward, but believing our best self is our only self is something else again. From observing others, we can get indicators whether they are full hypocrites or merely flawed vessels, but we can't know for ceratin. Self-honesty is usually a continuum, not an either-or.

    Paying close attention to Spitzer's apology is quite shrewd, Eric. Word-choice, emphasis, and a thousand subtle social cues we have developed over generations to detect cheats are in full play then.

    Assistant Village Idiot   ·  March 12, 2008 2:39 PM

    At least Spitzer fesses up and resigns unlike Larry Craig.

    mockum   ·  March 13, 2008 1:33 AM

    Thanks for the thoughtful discussion of hypocrisy, Eric. We conservative-type Christians tend to see hypocrisy on a continuum much as you do. One who sets himself up as any kind of moral arbiter (preacher, public figure, etc.) needs to have his life substantially in order. The higher his profile, the more his life must be in order. (I tried to write this comment in gender-neutral language and failed. I abase myself before the gods of PC.)

    notalawyer   ·  March 15, 2008 12:45 PM

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