The XX Factor: Slate women blog about politics, etc...

I was glad to see the New York Times raise questions about the aggressiveness and anomalous nature of the Spitzer investigation and prosecution, but I was very taken aback by the answers, especially those given by the federal prosecutors. They sounded like they were trying to wriggle out of being held responsible. There are two aspects of the case that worry me, and that I think should worry anyone who would like to prevent the collapse of our civil liberties: first, whether Spitzer should have been investigated at all, and second, whether his situation warranted him being followed and staked out by large teams of FBI agents. The pat answer to all this is that, hey, he would have done it, but a version of the old childhood saying comes to mind here: His being wrong wouldn't have made it right.

First: Never having researched this issue, I don't understand the charge of "structuring," or the exact nature of the financial transactions that triggered the Suspicious Activity Report, but it is clear that they involved what the Times once called "apparent sleight of hand" with sums of money that otherwise fall below the threshold of concern, and that would probably not have attracted notice before the new financial regulations put in place after 9/11. Those rules were adopted to catch terrorists, but I wonder how many terrorists they have helped to catch, and whether, rather than protect our security, they have instead exposed citizens—us—to unduly intrusive oversight of our personal finances. Maybe one of the many of you with law degrees, or someone who covers the legal beat, has a more informed opinion on this. To me, it seems that we should be absolutely certain we know what we're agreeing to before we let the government investigate behavior that is not actually illegal, such as moving small sums of money around.

Second: According to the Times, the prosecutors argued that they had to go to the lengths they did to investigate Spitzer, even after it became clear that he wasn't bribing anybody but just paying prostitutes, because if they hadn't, they might have been accused of a cover-up. His prominence and importance did him in. What could they do? This answer, it seems to me, is mischievous. It is a prosecutor's job to exercise discretion about whether or not to investigate and prosecute, and most prosecutors, I would hope, spend most of their working hours saying no. Are the federal prosecutors now saying that, in the case of a highly visible elected official, all they can do is throw up their hands? That they no longer have the right to exercise discretion—even though they did with every other client in that sting? That's a pretty alarming thing to say, especially when they didn't just fail to exercise reasonable discretion, they threw the entire weight of the U.S. Justice Department into spying on Spitzer. If visibility or prominence is the standard for investigation/prosecution, and not the gravity of the conduct involved, then that's an open invitation to harass our public figures for just about anything. It strikes me that an attitude like that toward elected officials could subvert—has subverted—our democracy in a very dangerous way.

Prominence, moreover, is a very subjective standard; in the era of electronic surveillance and YouTube fame, who isn't prominent? It seems to me that public figures are liketerrorists in this way: They are canaries in the civil-liberties coal mine. As go the rights of public figures and terrorism suspects, so go ours.

One other thing: To respond to Emily's question about whether in my last post I was claiming that sexism is worse than racism: I was saying that I thought Hillary Clinton had had a more horrifyingly personal encounter with sexism in her days as a public figure than Barack Obama has with racism. I was not making a blanket statement about racism vs. sexism, both of which strike me as equally brutal, insidious, and alive in our day. The context of my comment was the Woolf quote, which was about mockery and superciliousness and a very intimate sort of psychological harassment. I haven't read the Obama autobiography, but I find it hard to believe that he has been subjected to as much ridicule and deep, mean-spirited, unwarranted humiliation, as she has. (I have no doubt that he has encountered a great deal of racism—but doubt it has been as intimate as her brushes with sexism.)

And please don't say that her humiliation is Bill's fault. First of all, it started long before the Lewinsky affair, and second, what happened between Bill and her should have stayed between Bill and her. It should never have become public knowledge, and thus fodder for sadistic, voyeuristic, and yes, sexist awfulness. That it did, and the manner in which it did, is another good example of why the privacy of public officials needs to be protected from prosecutorial overreach.