University of Minnesota lawprof Dale Carpenter takes a look at the relevant statutes and doesn’t seem to find much basis for a criminal charge. Legally, that’s seems to be correct. Factually, it’s hard to argue that what Sen. Craig did was perfectly normal. How many people, when in a public bathroom stall, are going to be reaching under the divider and putting their foot next to the foot of the guy in the next stall? That sort of behavior is at the very least highly suspicious.
Carpenter does raise some rather interesting points about the sexual politics of this tawdry affair:
What really seems to have happened is that the airport police had received complaints about sexual activity and were acting over-zealously to deter it, regardless of the niceties of state criminal law. Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed. When newspapers print their names, as they often do, the consequences can be devastating. Like them, Craig probably wanted to avoid publicity and pleaded guilty to “disorderly conduct” in a futile effort to save his reputation and his job. Whatever we think of Craig’s views on gay rights, or of the cosmic justice in this particular Senator being ensnared in these particular circumstances, it’s difficult to see how he’s a criminal.
Given the legal analysis, I think he’s right — I don’t think that what Craig did was illegal under Minnesota law. Minnesota’s attempt statute (Minn. Stat. 609.17) uses the “substantial step” test for a criminal attempt — and there’s no evidence in the record which suggests that Sen. Craig made a substantial step towards lewd behavior or criminal conduct. Had Sen. Craig done the right thing, which is to have secured counsel and fought the charge, he probably would have won.
The problem is that Craig didn’t do those things. The exactitude required by law doesn’t exist in the world of politics, and Sen. Craig would have a very tough time justifying his actions in the court of public opinion — which is why he tried to make everything go away.
I’ve no doubt this is a devastating affair for the Senator, and despite the legal analysis which weighs heavily on his side, I think it’s clear that the Senator displayed an incredible lack of tact. The fact that he used his Senate credentials to try to get out of trouble is worthy of an ethics investigation alone. I think that if there’s any meat to these charges — and given the rumors that have swirled around the Senator in the past, that seems likely, then the Senator should choose to resign or at the very least choose not to seek reelection in 2008.
Legally, the Senator could have beaten the charge. Politically, it was too explosive. The political consequences are what matters to Sen. Craig’s career, and Sen. Craig’s actions have done fatal damage to his ability to stand as a member of the United States Senate.