Eliot Spitzer confirmed to reporters in Colonie that he answered questions from the Albany County District Attorney regarding the plan to use state police to create records of Joe Bruno’s use of official state aircraft.
I emailed Spitzer spokeswoman Christine Anderson and asked if the governor spoke under oath. She declined to say.
Republicans are sure to seize on that point if, as expected, the district attorney declines to bring criminal charges against the governor or his aides.
But the implications are interesting for reasons that go beyond straight politics. A New York City lawyer who knows more about criminal law than I do explained that Spitzer doesn’t have to answer questions under oath for his statements to the district attorney to be used against him if he’s found to be inaccurate.
The lawyer, who asked not to be named, said, “Even an unsworn statement can be used against the governor as a prior inconsistent statement. However, if the govenor was to testify under oath before a grand jury, the governor would get automatic transactional immunity for Troopergate. Which means no matter how guilty he was, he couldn’t be prosecuted.
“So the only thing that the DA could do is ask the goveror to testify under oath before the grand jury, and waive transactional immunity. “
The lawyer added, “So if a person is innocent, as the governor claims to be than he should offer to waive grand jury immunity and testify under oath. But a DA cannot force that.”