A Criminal Case Possible Under the Mann Act

Governor Spitzer, in the wake of the disclosure that he patronized a prostitute last month, now risks criminal prosecution, legal experts say.

For now, federal prosecutors are likely launching a wide investigation into Mr. Spitzer's finances to determine whether any public funds, property, or employees were used during any encounter between Mr. Spitzer and a prostitute, several former prosecutors say. The investigation might include establishing whether a taxpayer-funded bodyguard for Mr. Spitzer was present nearby. Law enforcement officials are also expected to try to contact any prostitutes whom Mr. Spitzer patronized, as well as interview Mr. Spitzer's inner circle about their knowledge of his conduct, former prosecutors say.

The situation raised the question of whether the governor may come under pressure to resign to placate prosecutors. The New York Sun first reported on its front page yesterday that the prostitution case was being handled by prosecutors who deal with government corruption, prompting speculation that an elected official was a client of the escort service.

"I would expect prosecutors are looking quite broadly at the governor's use of money to see whether any public or campaign funds were involved," a former Justice Department official, Andrew Hruska, now of King & Spalding LLP, said. "They would want to speak with all individuals whose names came up in the course of the analysis."

The New York Times has identified Mr. Spitzer as "client 9" in a recent criminal complaint filed against four managers of an allegedly high-end prostitution service, Emperors Club VIP, that billed up to $5,500 an hour. The criminal complaint suggests that client 9 was a repeat customer. Mr. Spitzer has apologized for acting in a manner that "violates my, or any, sense of right and wrong" but did not offer any additional details.

Whether Mr. Spitzer decides to resign could factor into a decision by prosecutors about whether to seek charges against him, but the prosecutors are also likely to be wary of being seen as meddling in state politics.

"There is going to be pressure on prosecutors to actually charge him," a former federal prosecutor in Brooklyn, Todd Harrison, who now works at Patton Boggs LLP, said. "But they're going to give him an out. If he resigns that might satisfy them that he's been punished enough and that he should not be charged criminally."

A criminal prosecution would likely take one of two or three paths, several former prosecutors said. The U.S. attorney's office in Manhattan, which is handling the case for now, could try to make a case alleging that the governor misused public funds or employees during his liaison. No evidence has been made public so far suggesting that he did so. Mr. Spitzer's trip to Washington included government business.

Prosecutors would have a more straightforward and easier case were they to charge Mr. Spitzer with violating federal
anti-prostitution laws, legal experts say. The problem for prosecutors there is that the Department of Justice doesn't generally prosecute men for patronizing prostitutes. The question becomes whether the Department of Justice will make an exception for a sitting governor.

"Generally speaking, prosecutors don't charge the clients in these investigations of prostitution rings," a defense attorney and the president of the New York City bar association, Barry Kamins, said, adding that whether the governor did get charged would be "really more of a political question that a legal question."

Although Washington, D.C., whose prosecutors are employees of the federal Justice Department, has its own anti-prostitution laws, there is no federal law that deal specifically with purchasing sex. A federal law known as the Mann Act does make it a crime to transport prostitutes across state lines or to persuade prostitutes to cross state lines for sexual purposes.

The fact that the liaison occurred in Washington could come back to haunt Mr. Spitzer. The criminal complaint claims that client 9, believed to be Mr. Spitzer, told a woman allegedly linked to Emperors Club that he had a balance of $400 or $500 with the service that would cover train fare for the prostitute from New York to Washington. Several legal experts said that if client 9 is indeed Mr. Spitzer, he appeared to have violated the Mann Act. That law dates back to 1910, making it one of the earliest federal criminal statutes still on the books. The law is known after an Illinois congressman, James Robert Mann, and was also known as the "White-slave traffic act."

In modern times, violations of the Mann Act are rarely charged, except against human traffickers. A Supreme Court ruling found that the prostitute who crosses interstate lines cannot be charged under the Mann Act.

ABC News has reported that the Justice Department is considering charging Mr. Spitzer with "structuring," an obscure financial crime that involves moving money to obscure the nature of payments. The investigation into the prostitution business, known as Emperors Club VIP, grew out of the IRS's scrutiny of Mr. Spitzer's finances, which involved payments to a front company for the prostitution service, ABC reported.

To represent him in negotiations with prosecutors, Mr. Spitzer has turned to an old friend, Michele Hirshman, who was Mr. Spitzer's deputy while he served as attorney general. She is now a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP.

So far, the investigation has been handled by the office of the U.S. attorney in Manhattan, Michael Garcia.

It is unclear whether the decision to prosecute Mr. Spitzer will be made by Mr. Garcia or by central Justice Department officials in Washington.

Other prosecutors from other districts could also consider charges.

The U.S. attorney in the District of Columbia, Jeffrey Taylor, is charged with enforcing not only federal laws but the district's municipal anti-prostitution laws as well.

Conceivably any U.S. attorney whose district includes a section of the train tracks that carried the prostitute, identified in court papers as Kristen, from Penn Station in Manhattan to Union Station in Washington, has jurisdiction to try to bring a Mann Act case against Mr. Spitzer, a former federal prosecutor who did not want to be identified because he did not want to appear to be advocating prosecution of Mr. Spitzer, said.

The basic handbook for prosecutors, the U.S. attorneys manual, does not explicitly require a U.S. attorney to sign off with Washington before prosecuting a state official.