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Tuesday, March 11, 2008

Sex, Corruption, Federalism, & the Mann Act

Our governor's downfall will provoke ample commentary from bloggers everywhere:  I see no need to add to the flood.  But the event does provide an opportunity to ponder the Mann Act, a statute that seems to flaunt our ordinary conventions about the proper role of the federal government. 

The Mann Act, in its original form, illustrated the role of formalism in expanding the reach of federal law.  As a matter of constitutional interpretation, Hoke v U.S., 227 U.S. 308 (1913) seemed to suggest that Congress had the power to block movement of people across state lines for any purpose whatsoever.  Caminetti v United States, 242 U.S. 470 (1917) held that the Mann Act's prohibition on the transportation of women or girls across state lines "for the purpose of prostitution, or debauchery, or for any other immoral purpose" included the purpose of non-commercial but extra-marital sex.  Hoke would culminate in Darby's principle that, when Congress uses its power to block interstate movement of people or goods, its motive or purpose is irrelevant.  Caminetti continues to be the classic citation for the principle that the intention of Congress, as inferred from committee reports, ballot title, and social context, cannot trump the plain language of the statute.  In effect, a federal statute targeted at 'white slavery" (i.e., brothels) was transformed by the magic of judicial formalism into a catch-all device to enforce sexual morality simpliciter, contrary to any apparent congressional intention.

Hoke and Caminetti combined led to an era of federal snooping into sexual immorality.  Although the Mann Act began life as an effort to suppress international prostitution rings, David Langum reports that the statute was enforced to the tune of 400-500 convictions annually against couples crossing state lines for extra-marital but entirely non-commercial trysts.  David Langum, Crossing Over the Line: Legislating Morality and the Mann Act 139-60  (U. Chicago Press 2004).  The defendant was frequently the woman who, when she drove the car, was indicted as a co-conspirator in transporting herself across state lines for immoral purposes!  As a historical matter, the Act was often used to discredit controversial political or public figures, ranging from the boxer Jack Johnson to singer Chuck Berry.  It was not until 1986 that Congress finally got around to trimming back on the statute's application to non-commercial sexual vice, limiting its application to "prostitution or ... any sexual activity for  which any person can be charged with a criminal offense."  18 U.S.C. section 2421.

Does anyone else besides myself find the use of the Mann Act against a governor a mite disturbing, especially when enforced against someone who belong to a political party other than the President's?   Given that the state governments seem completely capable of prohibiting prostitution if they wish to do so, is the enforcement of sexual morality by the federal government a completely gratuitous -- and, therefore, politically suspect -- exercise? 

Of course, there are also the allegations of money laundering and perhaps mail fraud.  But there is no claim that Spitzer defrauded the people of New York of honest services and, therefore, no role for the feds in illuminating local official dishonesty that local pols seek to shield.  Of course, the governor's transgression occurred in Washington, D.C., an enclave in which the federal government has general police powers.   But the feds are not enforcing any D.C. ordinance.   Whose interest, therefore, are the feds serving?  Not the interests of us New Yorkers:  We can enforce -- or not-- our own laws against sexual hank-panky.  Not the residents of D.C.  The only obvious beneficiary of this prosecution is the majority leader of the New York Senate, Joe Bruno and, more generally, Republicans who have managed to eliminate a major political rival.

In short, I find the distastefulness of the governor's tawdry behavior matched only by the distastefulness of the feds' wasting taxpayer resources to enforce an utterly gratuitous federal regulation of sexual morality against a political rival of the President's. 

Of course, I am a certified federalism nut.  Does any sane person share my reservations?

Posted by Rick Hills on March 11, 2008 at 10:58 AM in Law and Politics | Permalink


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Posted by: bj novack | Mar 16, 2008 6:25:37 PM

I think Spitzer's Washington Post article highlighting the Bush administration's continued successful effort to make sure no one and no state was able to stop or impede what has become the subprime lending debacle might well be judged to make him someone Bush might like to deal with in a way that might not be used on a "general sense" opponent. Oddly enough, this came just three weeks before the sex story broke. It is not really all that important if anything more is done legally, "Mission Accomplished!".

Posted by: D Baldwin | Mar 14, 2008 11:36:03 AM

How about the argument that this case was so high profile that not pressing charges would have looked like the Feds were giving a rich, powerful man a free pass? There is certainly a good rule of law argument to be made that laws should be enforced more stringently in high profile cases.

As for the investigation, unlike prostitution, the money laundering that was being investigated very well might not have been victimless. And given Spitzer's own heavy-handed tactics, I don't think you can object to his finances being scrutinized more heavily.

Posted by: David | Mar 13, 2008 10:42:09 PM

Your concern about Spitzer being a political rival of the president is, you have to admit, hand-wringing--a Republican, lame-duck president and a Democractic, first-term governor of New York are rivals only in a very general sense. Which isn't to say that the president has *no* reason to go after Spitzer, but if there's going to be any man behind the curtain, it would have to be Joe Bruno, who as you note is the obvious beneficiary of this entire unfortunateness.

I bring this up because while I share your federalism concerns about the Mann Act, I'm also kind of relieved that Spitzer was pursued by federal, rather than state or local, authorities. Why? Well, it wasn't that long ago that Spitzer abused the powers of his office in trying to discredit Bruno for the misuse of state police resources. How awful would it be for state government if, on top of Spitzer's resignation, it also came to light that Bruno had a hand in the whole mess by soliticing state law enforcement to investigate Spitzer's extracurriculars?

The point is that rather than be alarmed by the use of federal law enforcement against state political figures, we might instead be relieved, and for familiar reasons--federal authorities are at some remove from state and local passions and less responsive to state and local politic(ian)s.

Posted by: Paul Killebrew | Mar 13, 2008 12:52:46 PM


Another way to look at this is through a Sabri v. United States lens. That is, perhaps the federal interest is that the states are the recipients of so much federal funding that the trustworthiness of state officials becomes a federal concern. That was the Supreme Court's theory in Sabri, at least; I tend to think it's pretty tenuous.

Posted by: Orin Kerr | Mar 12, 2008 10:51:24 PM

The federal interest in this case is that of structuring withdrawals in order to avoid recognition of amounts in excess of $10,000 to be utilized in an illegal activity. When an initial SAR was produced, who knows if someone was licking their chops due to the size of the fish. But that really is of no consequence. What is of consequence is that they were likely thinking more along the lines of bribery, given the position held by the perpetrator. Wouldn't that likely be your first thought? Regardless, you have an individual of political prominence who is systemmatically withdrawing tens of thousands of dollars.

Are you seriously saying the feds should not have pursued this? We're not talking about a one-time withdrawal where he was transporting $11,000 to purchase a used VW in DC. This was no little nibble...it was a large bite. He was engaged in an illegal activity and using structured withdrawals (now hearing in excess of $100,000) from a financial institution to do so. I can think of at least one Louisiana Democrat that had less than that wrapped in newspaper in his freezer.
Question: Should the feds have backed off when they found it was merely used for prostitution instead of bribery or some other illegal activity which you feel to be more deserving of federal attention?

Posted by: Greg | Mar 12, 2008 12:47:35 PM

Somehow I find that the origin of the investigation in the extraordinarily broad money-laundering statute to be a cold comfort. Perhaps the Court in Cuellar v United States will narrow the vacuous terms of that statute (which makes it a crime to leave the country while "disguising [money's] nature, location, source, ownership, or control"). But the scope of the statute leaves ample room for fishing expeditions. Perhaps the feds were shocked and saddened by the big fish that they hauled in. Or not. I find much of the money-laundering statute to be just as offensive to any sensible theory of federalism as the Mann Act.

In addition, it is incorrect to assume that the Mann Act issue is irrelevant to the money laundering charge. "Money laundering" under 18 U.S.C. § 1956(a)(1)(A)(1) requires proof that one was concealing the dough to promote an illegal activity. What's the underlying illegal activity here except the sex?

Finally, I am curious as to why the feds felt it necessary to disclose to Spitzer or his staff the precise nature of the taped conversations. Presumably, this disclosure was not merely an effort to encourage him to leave office? But, if not, what was the goal? Just to insure the consistent enforcement of an obsolete federal morality law that is generally ignored by the feds? Forgive my skepticism.

I bow to no one in my distaste for Spitzer's tactics as a prosecutor. My mother served on the board of AIG during Hank Greenberg's travails, and I had a front-row seat on his viciousness in dealing with AIG. I regard him as an unethical prosecutor precisely because he used leaks, innuendo, and press conferences to extort cooperation from innocent targets. But these are precisely the reasons why I dislike the strategy of (1) enacting an extraordinarily broad federal criminal statute and (2) selectively enforcing it through leaks, disclosures to targets, and so forth. If the real purpose of the money laundering statute is to stop terrorism, then why is it being deployed to stop a crime in which the feds have no legitimate interest beyond enforcing an obsolete federal statute on sexual morality. And please do not tell me that the feds must prosecute every wrong-doing on which they stumble: they don't do so, have never done so, and are specifically instucted by the DOJ's manual for U.S. attorneys not to do so unless there is some federal interest.

So please tell me: What exactly was the federal interest at stake in this case?

Posted by: Rick Hills | Mar 12, 2008 11:29:01 AM


As I suggested in my original post, it is now obvious that it was the money laundering issue that triggered the investigation. Apparently, Spitzer was structuring withdrawals and a SAR was filed. Thus, it is very unlikely that the Mann Act was deployed in any abusive way, as prostitution was not the original investigation. I don't see how this can be held up for debate at this juncture, as these charges have yet to be filed against Spitzer. I would suggest that if there is any conspiracy involved, one should begin looking at those individuals Spitzer publicly gutted before pointing a finger at any political figures.

As an aside, Johns are rarely pursued in prostitution cases. And the prostitution charge is rarely the eventual charge that sticks. Typically, you will find that it is far easier to make money laundering or tax evasion charges stick.

Posted by: Greg | Mar 12, 2008 10:32:32 AM

the horse has kind of left the barn as far as ES is concerned

Posted by: keitht | Mar 11, 2008 11:32:34 PM

Actually the NYT article says that 4 people in the case were charged under the Mann Act (that's where I first saw the reference), but the article is really unclear about when that was or how that might be related to Spitzer.

Posted by: susie | Mar 11, 2008 11:19:48 PM

I think it's too early to tell. Spitzer hasn't yet been charged with anything, and we don't yet know exactly how the investigation unfolded. If the broader point is that the Mann Act is inconsistent with a strong notion of federalism, I think that's a fair point; when the interstate nexus is only incidental to the offense, often the states will be well equipped to bring these cases. But then Spitzer hasn't been charged under the Mann Act, and many never be so charged, so it seems a bit early to raise this concern.

Posted by: Orin Kerr | Mar 11, 2008 7:41:54 PM

Three points in response:

1) First, concerning federalism: In answer to Greg, I would not have charges dropped. I would have the Mann Act repealed.

The statute is an absurd violation of any sensible theory of federalism. The Court upheld the Mann Act in Hoke because of the Court's adherence to a formalistic theory of the commerce clause that is inconsistent with the spirit of the enumeration of powers in Article I, section 8. The point of the enumeration was to give Congress the power to legislate only in those cases where the states are incompetent to do so. There being no plausible argument that states are incapable of regulating prostitution without the help of the federal government, the Mann Act serves no function except needlessly to enlarge the power of U.S. attorneys.

2) Second, concerning partisanship: I certainly have no affection for Governor Spitzer. As state attorney general, he vindictively and, in my mind, groundlessly, threatened to indict innocents like Hank Greenberg (CEO of AIG) in order to coerce their cooperation. But I also do not like to see the politics of my state fundamentally altered by the enforcement of an unnecessary federal law, even when the law eliminates a politician whom I find personally odious.

3) Third, concerning abuse of prosecutorial discretion: When crimes are needlessly federalized, the opportunity to exercise prosecutorial discretion increases immeasurably. The Department of Justice cannot possibly enforce the Mann Act in the vast majority of cases, because the federal government lacks the resources to take on what is essential a responsibility of the states. Therefore, the statute is an open invitation for selective enforcement by U.S. Attorneys. As a historical matter, J. Edgar Hoover used the Mann Act to obtain embarrassing information about people with Left sympathies like Charlie Chaplin, sharing the information with gossip columnists and hounding them with prosecutions. (See David Langum, Crossing Over the Line at 189-94).

Whether the statute has been deployed against the governor in such an abusive way, I cannot tell, and neither can Greg. If we see indictments of Clients ##1-8 in addition to Client #9, then I suppose that my suspicions would allayed in the particular case. But I am not interested in the particular case: I am interested in the general statute. The Mann Act's gratuitous federalization of ordinary state-law crimes creates the opportunity for abuse. I would eliminate the opportunity by having Congress repeal the law.

Posted by: Rick Hills | Mar 11, 2008 6:25:51 PM


It appears to me that you have quickly jumped to inaccurate political conclusions. First, it is my understanding that the "feds" were not targeting Spitzer. They were targeting the money laundering of in excess of $1mil. Given the funding of terrorism, the Patriot Act has increased the scrutiny of large overseas transactions. While the facts have yet to be provided, apparently this is how this investigation began.

Second, for a blog that emphasizes intellectual honesty over partisanship, your position certainly was extremely partisan. At least at this time, no charges have even been filed against Spitzer, whom I would consider a wildly political zealot. The Mann Act has only thus far been mentioned by the media. To my knowledge, there has been no arrest. Either way, the law is very clear. If the governor was transporting a prostitute across state lines, he violated a federal law. Would you suggest the charges, if made, be dropped due to his political stature?

Should the law be changed to address only minors? Probably. But that's a separate issue, is it not? Is it a victimless crime? Probably. Should prostitutions be legalized? Possibly. But the better question would be shouldn't a former prosecutor know the law? Uh, yes. Is he above the law? No. Quite the contrary. Given his track record of blackmail and shakedowns, he clearly made a mistake believing he was above the law.

Posted by: Greg | Mar 11, 2008 4:04:02 PM

First, is the issue, Prof. Hills, that you disagree with the law on transporting women across state lines for prostitution on federalism grounds for (1) federalism grounds or (2) prudent grounds? (Or both?)

A second question - from all that I have read, it appears that nobody knew that Spitzer was a client of these people until he was caught by the Feds while they were already watching the ring. Can that be confirmed? If so, does that undercut your somewhat conspiratorial claims about political opponents of the President?

Relatedly, if a president decided not to prosecute Spitzer under the Mann act, what sort of consequences would that have for the rule of law, especially if Spitzers "co-clients" were (and are being) prosecuted under that same act?


Posted by: Jonathan | Mar 11, 2008 1:35:04 PM

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