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The Spitzer File Chronicles, Part 2: Trying to Keep Secret What is No Longer Secret

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As discussed in Part 1 of the Chronicles, US District Judge Jed Rakoff is a man who knows a lot about the First Amendment, and a lot about the dirty laundry on Wall Street. So, it was fortuitous (or ironic, depending on your point of view) that the Emperor’s Club prostitution ring case landed in his lap.

Eliot Spitzer had earned the hatred of powerful men on Wall Street. When he suddenly got "stung" in a sex scandal (though never charged with a crime), some–including me–wondered if it was a political "hit job."

So, along comes the New York Times and tries to get some of the government’s evidence pried loose. In February of 2009, Judge Rakoff issued a decision finding that the applications for wiretaps and the interim reports used to justify renewing the existing warrants are "judicial records" which can and should be released to the public upon request.

You can read the decision here (PDF), and the transcript of the oral argument of the motion here (PDF). Read the transcript in particular, the AUSA argues at great length about how wiretap applications are sealed to protect the secrecy of the government’s case pre-indictment, which is true. Title 3 (the wiretap law) also requires unsealing of the wiretap application and interim reports, and turning them over to defense counsel in discovery, which did not happen in this case because the defendants pled guilty. The investigation is over and there is no secret left to protect.

Yet, the AUSA makes the "protect the secret investigation" argument–for an investigation that is no longer secret– the center of his entire defense of the motion. The transcript is pretty funny.

But I digress.

So, Judge Rakoff issued the February decision–but stayed the execution of the order–so that the government could decide whether or not to appeal. On March 2, 2009, the government filed a notice of appeal. The civil appeal scheduling order is here (PDF), so you can have an idea of when we might see a decision from the Second Circuit.

In March, Judge Rakoff denied an after-the-fact application by Eliot Spitzer to intervene. For some reason, Spitzer thought his name should be redacted, I don’t get that, call a press conference, admit to a "federal crime" that isn’t actually chargeable and so will never be charged and then try to have you name redacted from documents related to the investigation? Uh, Eliot, the cat is already out of the bag. That decision is here (PDF).

This is part two of a three-part series.

Really good update thanks to Ishmeal in the comments. This is what Elliot Spitzer was inthe middle of doing when he got busted by the feds.

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looseheadprop

looseheadprop

In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.

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