One of the waivers the district attorney is seeking relates to e-mail messages and other material that Mr. Spitzer’s office turned over in response to a grand jury subpoena, an unusual move given the secrecy surrounding such proceedings.
The executive branch would also need to consider what precedent would be set by sweeping aside legal privileges that the Spitzer administration claimed. Doing so could also invite a suit from Mr. Spitzer.
Grand jury secrecy is not a political football. As Cuomo points out, citing a court opinion:
The Grand Jury has long been heralded as the shield of innocence . . . and as the guard of liberties of the people against the encroachments of unfounded accusations from any source. . . . Accordingly, secrecy has become a vital requisite of Grand Jury proceedings.
He concludes:
In short, the secrecy of the Grand Jury process must be preciously guarded, and the Governor does not have the legal right to waive that secrecy.... Again, only a court, and not the Governor, can make that determination.
Cuomo lists four alternatives to making the information public:
1. District Attorney Soares may obtain a court order authorizing disclosure of documents produced to the Grand Jury;
2. former Governor Spitzer may waive his claims of privilege;
3. the Senate may prevail in its litigation challenging the former Governor’s claim of
privilege;
4. the Public Integrity Commission may issue a NORC and disclose documents.
Credit is also due to Gov. Paterson for seeking the opinion of the state's top law enforcement officer, rather than deciding on his own.
Update: I just received a press release from AG Cuomo's office. It begins:
Today my Office issued a legal opinion as requested by the Governor of the State of New York. The advice sought by Governor Paterson concerns whether the Governor can grant a waiver of grand jury secrecy and all applicable privileges with respect to certain documents provided to the District Attorney's Office by former Governor Eliot Spitzer.
Yesterday, I briefed Governor Paterson on the opinion. In short, only a court can waive grand jury secrecy and former Governor Spitzer’s
privileges can be waived by former Governor Spitzer, or - if he refuses - defeated by a court. The Governor and I both believe deeply in transparency and disclosure and want all relevant documents released. The only question is the best legal vehicle to reach that end.
With respect to materials provided to the District Attorney for which former Governor Spitzer has reserved his privilege claims, my Office’s legal opinion acknowledges former Governor Spitzer’s claim of privilege and that he is legally justified in pursuing these claims of privilege as they were reserved by him when he provided material to the District Attorney. However, my personal opinion is that given the unique circumstances presented in this matter, it is in the public interest that the former Governor withdraw his privilege claims for the sake of the public's right to full disclosure and transparency.
On a related note, TrooperGate, Cuomo's press release says a new report was released today finding misconduct by Spitzer:
Today, the District Attorney released a report illuminating new important facts on the so-called “Troopergate” matter. The Attorney General’s Office began the investigation approximately eight months ago. Our Report last July found that members of Governor Spitzer’s senior administration staff had used the State Police in a political plot to discredit an adversary. The Albany District Attorney’s report today demonstrates this same improper conduct. Indeed, the District Attorney’s report also reveals that the scheme involved the former Governor himself.
