Jay Reding.com

Did Sen. Craig Commit A Crime?

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.

7 responses to “Did Sen. Craig Commit A Crime?”

  1. Eracus says:

    “First the verdict, then the trial!” declared the Red Queen.

    When news of your serial same-sex relationships reached me this morning, I just couldn’t believe it. I suppose you will be quitting law school now. Politically, it’s just too explosive, and the political consequences are what matters to your career. Granted, this is all based on nothing but hearsay and circumstance and of course may or may not be true, but don’t you think you should do the right thing anyway and just give up your seat to someone who doesn’t have all that baggage?

    You have noticed the discrepancies between the policeman’s incident report and his sworn affidavit, of course. That he was not “working a detail” in the facility at all but in fact entered the facility immediately ahead of Craig.

    I think that’s interesting, don’t you? And is this not the pattern of the earlier alleged incidents of misconduct involving Senator Craig? Where is the crime? Where is the actual behavior? Or are we now upon the new threshold of American law, where hearsay and innuendo are the new twin pillars of justice?

    Larry Craig may be a creep, but he’s broken no law. Why the double-standard?

  2. Jay Reding says:

    When news of your serial same-sex relationships reached me this morning, I just couldn’t believe it. I suppose you will be quitting law school now. Politically, it’s just too explosive, and the political consequences are what matters to your career. Granted, this is all based on nothing but hearsay and circumstance and of course may or may not be true, but don’t you think you should do the right thing anyway and just give up your seat to someone who doesn’t have all that baggage?

    Assuming that the facts in this hypothetical were the same as Craigs, I’d probably never be allowed into the bar. Remember, Craig decided to plead guilty to the charges, which isn’t something that you should ever do if you’re actually innocent. That conviction is on his record now, and he can’t claim innocence now that he’s entered his plea.

    He did have a trial. He’s already been found guilty in a court of law. Legally, he’s already admitted culpability.

    He’s backed himself into a corner, and whether or not that’s fair, it is what it is. The longer he stays on in the Senate, the more damage gets done. It isn’t going to change the balance of the Senate if he resigns, and someone else is going to be able to be a more effective advocate than he can.

  3. Eracus says:

    Craig acted stupidly. He did not seek legal counsel. He decided pro se to plead guilty to the charge of disorderly conduct rather than be involved in a trial 1200 miles away full of sworn testimony about homosexual toe-tapping signals and what was or was not actually on his mind in the men’s room. And for this he must resign?

    James Webb brings a weapon into the capitol where no weapons are permitted. He can stay on. Diane Feinstein is earmarking taxpayer funds for her husband’s company. She can stay on. Harry Reid is transferring taxpayer funds to his sons’ lobbying interests and arranging Federal real estate deals with known gangsters. He can stay on. William Jefferson is on film accepting a $100,000 bribe. He can stay on. Need I even mention Ted Kennedy? Barney Frank? Gerry Studds??

    Whatever you and I (or even John McCain) may think of Larry Craig, the people of Idaho have repeatedly elected him to represent their interests for more than 30 years. It’s their call, not ours, especially when we were not there and do not know what actually happened, if anything. It’s hearsay. It’s circumstantial. It’s obvious he tried to handle it expeditiously to avoid the extraordinary expense of a trial. Seems reasonable enough.

    You’re engaging in thought-police stuff here. I hope you’re a better lawyer than that. I don’t like it any more than you do, but this idiot has rights.

  4. Jay Reding says:

    Craig acted stupidly. He did not seek legal counsel. He decided pro se to plead guilty to the charge of disorderly conduct rather than be involved in a trial 1200 miles away full of sworn testimony about homosexual toe-tapping signals and what was or was not actually on his mind in the men’s room. And for this he must resign?

    As a matter of law, he’s already admitted guilt. I can understand not wanting to go to trial for this, but he backed himself into a corner by not at the very least getting counsel. It’s possible had he done so, he might have gotten away with this.

    James Webb brings a weapon into the capitol where no weapons are permitted. He can stay on. Diane Feinstein is earmarking taxpayer funds for her husband’s company. She can stay on. Harry Reid is transferring taxpayer funds to his sons’ lobbying interests and arranging Federal real estate deals with known gangsters. He can stay on. William Jefferson is on film accepting a $100,000 bribe. He can stay on. Need I even mention Ted Kennedy? Barney Frank? Gerry Studds??

    In Webb’s case, it was his aide that transported the gun, not him. In all of those cases, if any of those people had plead guilty to a crime, I’d say yes, they should go.

    The problem is that just because the Democrats have no accountability, that doesn’t mean that the Republicans should follow suit. At the very least there’s going to be an ethics investigation, and it’s likely that what they’ll turn up won’t look good.

    Whatever you and I (or even John McCain) may think of Larry Craig, the people of Idaho have repeatedly elected him to represent their interests for more than 30 years. It’s their call, not ours, especially when we were not there and do not know what actually happened, if anything. It’s hearsay. It’s circumstantial. It’s obvious he tried to handle it expeditiously to avoid the extraordinary expense of a trial. Seems reasonable enough.

    I’ll give you the first part as a perfectly reasonable argument. The problem is that each day that this issue hangs out there, more political damage gets done: to Idaho, to the Republican Party, and most importantly to the reputation of the Senate. If Craig is perfectly innocent, that’s one thing. But where as a matter of law he’s already entered his plea, he just doesn’t have much room to maneuver.

    You’re engaging in thought-police stuff here. I hope you’re a better lawyer than that. I don’t like it any more than you do, but this idiot has rights.

    Except he was charged with doing something, not thinking it. Yes, he does have rights. He got an opportunity to have his trial. He chose not to exercise his rights, he wasn’t denied them.

    I think he should resign because as long as this cloud hangs over him, he can’t be effective, and the chances of this thing simply blowing over are slim to none. He isn’t obligated to resign, but it would be the best thing for him to do.

  5. Eracus says:

    Larry Craig’s constitutional rights were violated when he was falsely arrested.

    I realize I’m in the minority here and am not going to win any “coulda, woulda, shoulda,” arguments where it concerns the politically expeditious solution for all the reasons you have listed. I also don’t have any special sympathy for Larry Craig. What I do know is this is yet another glaring example of the abuse of police powers in a restricted jurisdiction, particularly as it regards the gay community. I am not gay, I do not approve of the gay lifestyle, I oppose the gay political agenda in its entirety, but if the police are going to arrest gays in public restrooms then it had goddam better be for more than tapping their toes and wiggling their fingers. This is just plain wrong.

    It should also be brought to your attention that it is common practice for police to charge people they arrest and detain with “disorderly conduct” merely to justify their arrest and detention. No doubt that is exactly what happened here because there were no other charges, meaning the officer simply could not make his case that there was anything at all illegal going on in the restroom. The police report speaks for itself and before the law, it would not be worth the paper it’s printed on. No D.A. would have given it a second look. But that really wasn’t Larry Craig’s problem.

    Larry Craig’s real problem was that he was arrested inside a nationally-recognized location where gay men cruise for sex. This is not a secret, probably not even to Larry Craig, but we don’t really know that. It could have been, in which case we have here yet another character assassination of a GOP Senator slimed and smeared for just being at the wrong place at the wrong time. And his party, which he has loyally served with distinction for some 30 years and which needs desperately to reach out to the gay community, is now instantly beating the drum for his dismissal after their first whiff of grapeshot. My, my. With friends like these…..

    If Craig had sought counsel, pled not guilty, and the case was heldover for trial, the headlines would have read, “GOP Senator Nabbed in Gay Sting at MSP.” The rest of the story, as you well know, wouldn’t have mattered. He’d be ruined. His family would be ruined. His career would be over, even if he beat the rap. So it seems to me, on principle, we ought to grant the old coot the benefit of the doubt and let his constituency decide, or let Larry Craig himself decide.

    Because all we accomplish by hounding Larry Craig out of office on this thinnest of thin reeds is NOT the expeditious political solution you seek, but instead yet another declaration that homosexuals are not welcome in the Republican Party and that it’s open season on any GOP official using a public restroom. The threshold for his arrest will be that he tapped his foot inside a restroom stall. He will then either have to plead guilty to “disorderly conduct” in a public restroom to avoid the publicity of a trial, or go to trial to prove in public he was the only innocent straight guy nabbed in a gay sting operation at a notorious location where gay men cruise for sex.

    Heads they win, tails you lose.

  6. Mark says:

    Eracus, so your position is that Larry Craig’s lawbreaking should be exempted from consequences because you don’t like the law? I don’t like seatbelt laws myself, but I don’t get to avoid paying the fine if I violate it simply because I don’t like the law. If you want to change the laws regarding “lewd behavior in public restrooms” to help out the next closeted homosexual Republican Senator who breaks it, go right ahead, but as the laws are written now, you’re gonna have a very difficult time explaining why a guy who plead guilty to a crime currently on the books should not get his comeuppance in the court of public opinion and the ethical court of his colleagues.

    And by the way, I double dog dare you to press for easing up on laws regarding public restroom “lewdness” to protect gay Republicans. Your party wins votes by exploiting homophobia and constantly raising the bar on “hatin’ on gays”, and once again, you’re the victim of your own tangled web. It couldn’t have been scripted better.

    As for leaving it up to Idaho voters rather than Norm Coleman and John McCain, I actually kind of agree with you….but polls indicate that 55% of Idahoans want Craig to go away. You don’t have a leg to stand on here….but I nonetheless hope that you (and as many Republican die-hards as possible) will continue to breathlessly defend Larry Craig in the weeks and months ahead. That filibuster-proof Democratic Senate majority is looking more real by the day.

  7. Eracus says:

    As always, Mark, you are completely delusional. Craig is not exempt from the consequences of his “crime” and I have suggested absolutely nothing that you have described. You’re just making stuff up again. Have you nothing better to do??

    The record, now available everywhere, speaks for itself. The policeman could not make the case for public lewdness or obscenity and so charged Craig instead with disorderly conduct. Craig pled guilty to resolve the issue and avoid a trial.

    Whether a sitting U.S. Senator should continue his term after being arrested on a disorderly conduct charge in a public men’s room is a decision the Senator and/or his constituency should make. Certainly everyone else can register an opinion and it should surprise no one that 55% of Idahoans and the GOP want Craig to go away. Fine by me.

    All I’m saying is the police ought not to be arresting people in public restrooms for foot-tapping and finger-fidgeting, as seems to be the case here. By this standard, any man using a public restroom is subject to arrest, which is as stupid as it is wrong.