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When Spitzer gave the order to subpoena every relevant e-mail he could get his hands on, he had no idea he would get the smoking guns that materialized. Merrill Lynch complied promptly, perhaps unaware of the documents' incriminating nature. Over six weeks in March and April, the investment bank sent 30 big boxes of e-mail, snapshots from the hard drives of Internet-company analyst Henry Blodget and his team.
It was a new experience for Spitzer, who had never tried to build a case from an unsorted, unedited stack of e-mail. For more than a month, Dinallo, who runs the investor-protection arm of the office, and a few associates hunkered down, reading the messages at work, over lunch, in bed at home. An empty office became the war room, a place where the staff could read and catalog what turned out to be 94,439 pages of e-mail. "I read a large portion of them," says Dinallo, a bright, energetic lawyer whose off-hour passions are chess and vintage comics. "You're getting these conversations in real time, learning how they talk and think."
The investigation began on a shoestring in June 2001, when the attorney general's office, inspired in part by a Wall Street Journal article, issued a subpoena to Merrill asking for documents related to GoTo.com and another Internet company, InfoSpace. Spitzer dusted off the Martin Act, a 1921 New York statute that allows the attorney general's office to launch broad investigations of securities companies. "Martin," Spitzer concedes, "is generous to prosecutors." His interest picked up the following month when he learned that Merrill Lynch had settled promptly and magnanimously with a New York City pediatrician who charged that his $1.2 million portfolio had been nearly wiped out by Blodget's allegedly tainted boosterism for tech stocks, including InfoSpace. The $400,000 settlement energized Spitzer. "I looked at that," he says, "and thought, There has got to be something there."
It was the 30 boxes of e-mail that began arriving in March that made the case. In early spring Spitzer confronted Merrill with the evidence. Merrill complained that they had been taken out of context but appeared willing to settle. What Merrill didn't want was having everything made public. That's where it underestimated Spitzer's resolve. He held out for disclosure and on April 8 filed an investigative action against Merrill. That day he held a press conference and released the most egregious of the e-mail.
They became instant classics. A Merrill research report from Dec. 21, 2000, for example, called an Internet company, LifeMinders, "an attractive investment." But earlier that month, a Blodget e-mail had said, "I can't believe what a POS [piece of s___] that thing is." Spitzer has another favorite--a Blodget missive, now known in the office as the "smoking-gun" document, that says if his team doesn't get any guidance from above, "we are going to just start calling the stocks ... like we see them, no matter what the ancillary business consequences are." Says Spitzer: "You had to love it. Blodget made it clear he genuinely didn't believe his own ratings."