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Wednesday, August 29, 2007

The answer to the "Why was this a crime?" crowd on the Craig matter

Ed Morrissey, Garrance Franke-Ruta, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed any crime. As Mr. Balko writes,

Craig didn't actually engage in the lewd behavior. Didn't get that far.  Aside from the peeping charge, which was thrown out, the only thing I can see that he's guilty of is looking for a willing sex partner. And I can't see how that is or should be a crime.

Mr. Balko's confusion comes from his assumption that the peeping charge was "thrown out." It wasn't. Instead, the peeping charge was pleaded out — and that's a very, very big difference in this context. In fact, it's the peeping charge that almost certainly explains and makes justifiable Craig's plea to disorderly conduct (even if the latter crime was less obvious or more questionable on these facts).


Prof. Ann Althouse links, quotes, and examines the two statutes under which Craig was charged. Here's the peeping statute:

(c) A person is guilty of a gross misdemeanor who:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a ... place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and

(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

The intent requirement is obviously key, since it is what separates criminal peeping from a casual glance to see if a stall is occupied. Was Craig just casually glancing? The prosecution, I'm sure, felt that with testimony at trial which would be consistent with this paragraph from the police report, and with all of the other circumstances, the State could prove beyond a reasonable doubt that Craig intended to "intrude upon or interfere" with the undercover cop's privacy (emphasis mine):

At 1213 hours, I could see an older white male with grey hair standing outside my stall. He was standing about three feet away and had a roller back with him. The male was later identified by Idaho driver's license as Larry Edwin Craig [redacted]. I could see Craig look through the crack in the door from his position. Craig would look down at his hands, "fidget" with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes. I was able to see Craig's blue eyes as he looked into my stall.

Prof. Althouse correctly notes that the peeping statute much more closely tracks the facts alleged in the police report than the disorderly conduct statute, but she goes on to write, also correctly: "I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge."

Larry Craig's mugshots, courtesy of thesmokinggun.comI would take that a step further with considerable confidence: The dismissal of the peeping charge was not because it was improper or because it would be shown to lack evidentiary support. Instead, the peeping charge was dismissed without objection from the prosecution because that was what the State gave up as its key part of the plea agreement. Thus, Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction.

Yes, disorderly conduct is a broad and vague charge — one that doesn't much seem to fit the facts alleged. And Craig’s presumably intended but uncompleted conduct (some sort of sex in a public men’s room) would certainly have been considerably more disorderly than anything he actually did before he was arrested. But disorderly conduct's very vagueness — encompassing "offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others" — makes it stretchy enough to cover, if barely (and if only for purposes of a plea bargain) what Craig actually did do. Indeed, it's entirely possible that it was charged in the first place as an obvious, attractive basis for compromise, i.e., a charge with at least some factual correspondence to what happened, and upon which a more attractive plea could therefore be negotiated (especially for someone with no criminal record or other indications of dangerousness).

I am not in the least suggesting, either, that the prosecution or the court gave Sen. Craig a better deal than they would have given any non-famous non-senator average citizen. There's no reason to think that Sen. Craig was treated anything but routinely. This sort of plea happens every day in criminal courts around the country, and so long as there's at least some factual basis for the plea, there's nothing exceptional or remotely wrong with it. It's altogether possible that the prosecution would have declined to pursue the disorderly conduct charge if the case had gone to trial; or they might have left it in, figuring that it would give the judge or jury an alternative basis to punish, but less severely. From the prosecution's standpoint too, the peeping charge would have required proof of intent — making it, appropriately, a harder crime on which to secure a conviction. And if the prosecution's case had been objectively less strong, then perhaps the alternate charge (and the resulting plea) would have ended up being, say, "loitering" instead. But since the stigma would have been vastly greater from a peeping conviction, then dropping it — as opposed to dropping the disorderly conduct charge — was a much greater boon to the defendant.

Thus did this plea, like countless others every day, aptly reflect the litigants' well-informed judgments as to their respective risks and benefits from going to trial. This defendant pleading guilty to disorderly conduct, in exchange for the prosecution dropping the peeping charge, made sense for both sides, even if disorderly conduct was not the crime whose elements most obviously and more closely fit the facts. For these reasons, no libertarian ought to be concerned about whether Sen. Craig's been abused by the system, or whether some terrible precedent has been set.


That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct — conclusively and irrebuttably — under the Rule of Law as it speaks for our society. Our system of law emphasizes "the particular importance of the finality of guilty pleas, which usually rest on a defendant's profession of guilt in open court, and are indispensable in the modern criminal justice system's operation," United States v. Dominguez Benitez, 542 U.S. 74, 75 (2004). At the moment Sen. Craig's plea was accepted by the court, then, whether he mighta, could, shoulda won if he'd fought all the way through trial became forever irrelevant. It's unproductive even to speculate about. Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room.

My sympathies are with his family and with the people of Idaho who find this whole thing terribly embarrassing, and I can even dredge up sympathy for Sen. Craig to the limited extent that he suffers from inner demons that have caused him to engage in such self-destructive behavior (i.e., committing a crime in an airport toilet), regardless of whether he's straight or gay or bi or whatever.

But I have absolutely no sympathy or patience whatsoever with him attempting to weasel out of the fact of his conviction or the consequences for it. His attempts to do so are gutless and pathetic and offensive, completely without regard to whether he really is or isn't gay. Indeed, I know plenty of openly homosexual men who, when under pressure, have displayed vastly more of the so-called (and it's an admittedly sexist construction) "manly attributes" of character and virtue than Sen. Craig has in his attempts to defend and justify himself. His are the sort of arguments that can only be made a scoundrel who thinks he's arguing to fools — arguments that are insulting to us, and only further degrading to himself.

He should simply resign — immediately and without further ado — and then set about salvaging his personal life in such privacy and dignity as he can find.


UPDATE (Fri Aug 31 @ 11:00am): In an update with a gracious link to this post, Prof. Althouse tweaked me for being overbroad in my arguments about the conclusiveness of Sen. Craig's guilty plea, as have several of my commenters here.

I'm not licensed in Minnesota, but my quick skim of that state's law leads me to conclude that before all this went public, Sen. Craig had already missed his fifteen-day deadline to file a motion for new trial, as well as his ten-day deadline (disorderly conduct being an ordinary instead of a "gross" misdemeanor) to file a notice of direct appeal as of right. My strong hunch, then, is that his conviction is already considered "final." I did not say, and do not wish to be read to suggest, that there are no legal procedures for challenging a conviction after it has become final. But such "collateral attacks" are highly disfavored and rarely successful. Nothing I've heard or read suggests that Sen. Craig has even alleged facts that could possibly support a successful collateral attack.

I therefore reemphasize that unless and until his conviction is overturned — and that's a possibility that now seems very, very remote — he is guilty in the eyes of the law, and he should be so viewed by every element of society that believes in the law.

Of course he can still call press conferences and pound the table and insist that he's "really innocent." Prisons are full of people who express that opinion about their own convictions. Legally, such assertions are absolutely meaningless; legally, while their convictions are still in place, they are conclusively estopped (i.e., forbidden by the law) from disputing their guilt for any purpose. Thus, for example, Sen. Craig can't sue anyone for defamation for saying he is guilty of the misdemeanor crime of disorderly conduct. Every court would treat the truth of that assertion is having been conclusively established; they will not entertain any contrary proposition for any purpose.

Some of my commenters assert that innocent people sometimes plead guilty. That's a logically and linguistically flawed assertion. Everyone who pleads guilty has, until the moment they've entered their plea, been "innocent" in the eyes of the law. And once their guilty plea is accepted, then unless and until it is set aside, they are guilty in the eyes of the law.

What my commenters presumably mean is, "Well, I'm really sure that if the defendant had gone to trial on Charge X, he would have been acquitted." Fine, then. Go to trial; once the defendant is acquitted, he can say that the state has failed to prove him guilty and that his constitutional presumption of innocence remains intact. Otherwise you're just guessing, no matter how confident you say you are, and you're talking about a species of "innocence" in which that word means something different than what it does in our criminal justice system.

"I just couldn't be bothered to go through with the trial," or "I wanted to be spared the publicity," or "I didn't have confidence in my lawyer," or countless other such motivations may in fact have prompted some defendants to enter guilty pleas in cases in which — from an omniscient point of view — one could opine that had they in fact gone to trial, they would have turned out to have been acquitted. But in the eyes of the law, any statement to the effect of "Oh, I was really innocent" after you've entered a guilty plea, while your conviction is still standing, is simply meaningless nonsense. The law doesn't have a category for "guilty (but really innocent)," and your engaging in that pretense still doesn't make you any less guilty in the eyes of the law, no matter how often you or anyone else says it.

And for other purposes — in our consideration as voters and citizens, for example, of a politician like Craig who makes such a statement — we ought, at a minimum, to be extremely skeptical; we're each entitled to reject such a statement altogether (which is my position here and in almost any similar situation); and we have to acknowledge that the statement may only have any persuasive force if it is offered outside a legal context (i.e., outside "the eyes of the law," to repeat the phrase I've used so often already).


UPDATE (Sat Sep 1 @ 8:40am): Here is a link to the audio tape of the arresting officer's post-arrest interview with Craig. From an Idaho Statesman article about it:

Despite the denials, Steve Simon, a University of Minnesota law professor, said Craig would not want to have such a tape played before a jury.

"There is an extremely damning statement on that tape. If you listen to the tape, at the very beginning there is an explanation of what's going to happen," Simon said. "Then, totally out of the blue, Craig said, ‘You solicited me.'"

Simon said a prosecutor could argue that Craig interpreted the officer's behavior with the feet as soliciting, and that would raise this question: Why would a proclaimed straight person like Craig recognize that?

"It's an extremely powerful piece of evidence," Simon said.

Whether Craig is gay or straight, and whether or not he was soliciting a sexual encounter or not, his apparent knowledge of the foot-tapping and -rubbing protocols certainly would be relevant to show that he "knew or should have known" his own tapping and rubbing would tend to be offensive and to cause alarm or resentment.

Federal prosecutor WLS, guest-blogging at Patterico's, argues  that the police, prosecutors, and judge all abused Sen. Craig, whose conduct couldn't have been "offensive" to anyone:

Question: If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?

If not, then why is a toe tap and a hand gesture under the partition of a men’s room stall a crime?

Answer: Because when a citizen goes into a bathroom stall in a public restroom at an airport, he has a different expectation of privacy than he does standing on the floor of a gay nightclub (or any nightclub). WLS asks (ellipsis his):

So, a toe tap and a running one’s hand along the bottom of the men’s room stall ....

Offensive?  To whom?

Answer: The prosecution was counting on it being offensive to the hypothetical average person who doesn't expect to be stared at while sitting in a public bathroom stall, and then to have the offender's hand and foot intrude into that stall, and then have the offender's foot pressed against the hypothetical average person's. And by pleading guilty, Craig forfeited his right to any benefits of the doubt as to whether his conduct was offensive, and as to whether he knew or should have known that it would tend to arouse alarm or resentment. I respectfully disagree with WLS' analysis, especially insofar as he faults the judge, for reasons expressed both here and in Patterico's comments (so far, here, here, here, and here).

Reports are that Craig is expected to resign this morning.


UPDATE (Sat Sep 1 @ 11:40am): Craig just announced his intention to resign, effective September 30th, in a short and fairly dignified statement. He apologized "for what I have caused" and for his inability to serve out his term. And he said that "to pursue my legal options as I continued to serve Idaho would be an unwanted and unfair distraction of my job [sic] and for my senate colleagues."

Fox News interprets that as him committing that he will indeed "pursue his legal options," but I am not at all sure he intended to make such a commitment. For reasons I discussed above, I think the chances of his setting aside his conviction via a collateral attack are very small — I'd rate his odds at well under 1%. If he were to succeed, he'd again be subject to the more serious peeping charge, which carries a much stiffer potential penalty. Even trying to set the conviction aside will cause this to linger in the press, with the overwhelmingly likely result simply being to further convince any doubters that his plea was voluntary and binding. And but for its potential political repercussions — which now have played out fully — this was a pretty sweet plea bargain. It will not surprise me if he makes no serious effort to get the plea set aside, and in fact were I his lawyer, I'd advise against it.

Posted by Beldar at 03:16 PM in Law (2007), Politics (2007) | Permalink


Other weblog posts, if any, whose authors have linked to The answer to the "Why was this a crime?" crowd on the Craig matter and sent a trackback ping are listed here:

» Larry Craig - Day 3: The fallout, and misc. thoughts from Sister Toldjah

Tracked on Aug 29, 2007 7:19:36 PM

» What Was Larry Craigs Crime? from Outside The Beltway | OTB

Tracked on Aug 30, 2007 7:03:00 AM

» Craig-O-Ramma from The Agitator

Tracked on Aug 30, 2007 7:35:06 PM

» Bainbridge on foie gras and dog-fighting from Overlawyered

Tracked on Aug 30, 2007 8:39:26 PM

» Craig Against the Machine from damnum absque injuria

Tracked on Sep 1, 2007 3:50:58 PM

» Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him from BeldarBlog

Tracked on Sep 10, 2007 8:51:29 PM

» In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record" from BeldarBlog

Tracked on Sep 12, 2007 9:31:18 PM

» ACLU files silly brief in support of Craig's plea withdrawal from BeldarBlog

Tracked on Sep 17, 2007 11:16:42 PM

» Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Sep 21, 2007 6:57:37 PM

» Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Sep 24, 2007 9:16:21 PM

» Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand from BeldarBlog

Tracked on Sep 25, 2007 6:22:34 PM

» Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea from BeldarBlog

Tracked on Sep 28, 2007 6:37:35 AM

» Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (but pending further appeals)"? from BeldarBlog

Tracked on Oct 1, 2007 11:27:20 PM

» Minnesota trial court rejects Craig's motion to withdraw guilty plea from BeldarBlog

Tracked on Oct 4, 2007 3:39:10 PM


(1) DRJ made the following comment | Aug 29, 2007 9:39:34 PM | Permalink

Well done. I don't often find posts that say everything I wish I could say, just the way I wish I could say it. This is one of those posts.

(2) Jinnmabe made the following comment | Aug 29, 2007 11:23:49 PM | Permalink

Hey, I'm one of the people of Idaho, and I am extremely embarrassed. Mostly by the idiotic "I pled guilty, even though I didn't do anything, just to make this go away." Sir, you are too foolish to represent us. Please resign.

The time to make the libertarian arguments (with which I have sympathy) is to the media after your trial in Minnesota on the merits, which occurs because your attorney (with whom you consulted before doing anything) has rejected a plea deal, honestly believing you didn't do anything criminal.

(3) Dan S made the following comment | Aug 30, 2007 8:11:04 AM | Permalink

Wow, Beldar, that sure fans away the smoke surrounding this case. I was in the camp "was a crime actually committed?" Now I am comfortable with the situation. It wasn't that I didn't accept the legal guilt of Craig, since he plead out. It was just whether the means to get to that point was something I felt was appropriate for police and the system. Now I can see how it most likely came about, and agree that the key element was the peeping.

Thanks for that clear and pointed explanation.

(4) VR made the following comment | Aug 30, 2007 12:47:00 PM | Permalink

Do we know one way or the other whether dropping the "peeping" charge was part of a negotiated deal? That should be on the record, but I confess I am too lazy to check, and have only read media reports.

If it was part of a deal, then I agree with Beldar (and I speak as a public defender in a large city--these kinds of pleas are quite routine). If, however, the charge was dismissed for some other reason, its a different story. And I have a lot of concerns about the abuse of vague statutes like "disorderly conduct" that get used as tools to give police officers what I consider to be absurd amounts of power to hassle citizens.

Nonetheless, I refuse to believe that a US Senator, who pled 2 months after he was arrested, did so "in haste" and did not have the chance to speak with a lawyer. Please. He was hoping this would go away. And he did say, under oath, that he was guilty--that's part of the plea colloquoy everywhere in this country, judges ask if you are pleading guilty knowingly and voluntarily, and they usually ask straight out "are you doing this because you are in fact guilty?"

But I wish the media reports I had read would clarify if this was a negotiated deal with the prosecutors or what.

Thanks for the post.

(5) Beldar made the following comment | Aug 30, 2007 1:23:06 PM | Permalink

VR: From Craig's press conference (in which he read aloud this written statement that's presently on the front page of his official Senate website):

I chose to plead guilty to a lesser charge in the hope of making it go away.

From the AP report on Aug. 27th:

A Hennepin County court docket showed Craig pleading guilty to the disorderly conduct charge Aug. 8, with the court dismissing a charge of gross misdemeanor interference to privacy.

The written petition by Craig to enter his guilty plea is here. (This being a misdemeanor, he was allowed to enter his plea by mail, so there was no sentencing colloquy like there would have been for a felony, but the standard form contains the same sort of acknowledgments.) As signed by Craig on August 1st and filed with the Court on the same day for which the AP describes the docket entry, August 8th, it doesn't expressly reference the prosecution's agreement to drop the peeping charge, but combined with the AP report, I think that's the inescapable inference from the fact that there is no guilty plea to it or sentence for it. It's clearly a standard-form document that was adapted for Craig's review and signature by the prosecution (as evidenced by the precise and formal references to the statutes, punishment, etc.). If neither Craig nor a lawyer representing him was present, then I think there's effectively zero chance that the dismissal of the peeping charge was made other than at the prosecution's suggestion to close the matter. How much actual "negotiation" went into the deal offered by the form plea, I can't say, but I think that's fairly clearly the deal they offered and that he took.

(6) Friend #1 made the following comment | Aug 30, 2007 1:58:57 PM | Permalink

"Friend #1, I'll adopt and incorporate by reference DRJ's guest post on Patterico's blog with respect to Sen. Craig."

That's fine, but your adoption of DRJ's post sidesteps an important issue. Should Republicans call for Senator Craig's impeachment, for lying in an official proceeding? I understand that Republicans and conservative bloggers have called upon Craig to resign. That's the official Republican talking point. And I don't blame conservatives for wanting this whole icky mess to go away. Following the electoral pasting Republicans caught in '06, due in part to the Mark Foley scandal, I have no doubt that Mitch McConnell is quaking in his photo-op combat boots.

My question is, will Republicans and conservatives attempt to maintain intellectual consistency by calling for Craig's impeachment? Let's put aside the GOP's very obvious dilemna that Senator Craig has not indicated a willingness to go quietly. The proper remedy is clearly and unquestionably impeachment, right?

(7) Friend #1 made the following comment | Aug 30, 2007 2:19:16 PM | Permalink

"That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct — conclusively and irrebuttably — under the Rule of Law as it speaks for our society. ... At the moment Sen. Craig's plea was accepted by the court, then, whether he mighta, could, shoulda won if he'd fought all the way through trial became forever irrelevant. It's unproductive even to speculate about. Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room."

Beldar, while your skills of persuasion continue to amaze me - and I'm not trying to be funny, I really do mean it - your statement about the finality of the plea process is neither accurate nor legally desirable. A person may always seek to have a plea set aside via a post-conviction writ. In that vein, there are many reasons why an innocent person might choose to plead guilty. It would be wrong to deny legal recourse under such circumstances.

(8) Beldar made the following comment | Aug 30, 2007 2:25:38 PM | Permalink

Article II, section 4 of the Constitution authorizes impeachment, conviction, and removal from office for "Treason, Bribery, or other high Crimes and Misdemeanors." "High" was intended to modify both "Crimes and Misdemeanors," and in its historical usage was understood to cover those sorts of crimes particularly odious when committed by public office holders in high places. As a practical matter, the phrase means whatever any given House and Senate say it means in any given impeachment or trial, but I don't think there's much precedent for impeachment based just on a misdemeanor disorderly conduct conviction unrelated to any governmental duties.

As a practical matter, it's premature to address the possibility of impeachment for Craig; or put another way, it's too soon to conclude that he won't eventually "go quietly." But what "lying in an official proceeding" did you have in mind in your question, Friend #1? And former prosecutor that you are, did you mean to say "perjury"? (If you did, I'm pretty sure you would have.)

(9) VR made the following comment | Aug 30, 2007 2:33:32 PM | Permalink

Beldar--thanks for links. I am used to my state, where misdemeanor pleas must be done in person just like felony pleas (in my state, the term "misdemeanor" is defined as crimes punishable by up to 5 years imprisonment). So I assumed it was done in person--that's what happens when I skim the articles and did not look closely!

From context, it certainly appears that this was negotiated, I agree.

And, as I said before, his excuses are patent horse****. He knew what he was doing in pleading guilty.

BONUS QUESTION: Is "I have a wide stance" the silliest criminal-defendant story you've ever heard? It's up there for me, but I've only been doing this a few years.

(10) VR made the following comment | Aug 30, 2007 2:39:15 PM | Permalink

Regarding the impeachment option, I quote from the Wikipedia article on impeachment in the U.S., from a note on Senator Blount (the only senator or congressperson ever impeached):
During the impeachment trial of Senator Blount, it was argued that the House of Representatives did not have the power to impeach members of either House of Congress; though the Senate never explicitly ruled on this argument, the House has never again impeached a member of Congress. The Constitution allows either House to expel one of its members by a two-thirds vote, which the Senate had done to Blount on the same day the House impeached him (but before the Senate heard the case).


My understanding is that most scholars now agree that impeachment does not apply to congresspersons, and that expulsion is the only remedy.

(11) Friend #1 made the following comment | Aug 30, 2007 8:08:14 PM | Permalink

"I don't think there's much precedent for impeachment based just on a misdemeanor disorderly conduct conviction unrelated to any governmental duties."

True ... and there's probably not much precedent for impeachment for lewd conduct in an airport bathroom. I suppose we could always attempt to draw favorable distinctions for our clients ...

"But what 'lying in an official proceeding' did you have in mind in your question, Friend #1?"

Specifically, Craig telling a court he was guilty of a crime, which he now claims he did not commit.

"And former prosecutor that you are, did you mean to say 'perjury'?"

Definitely not. I don't think it's perjury.

Beldar, if I catch your drift, your position is that a "high crime" or a "high misdemeanor" includes perjury in a civil deposition, but does not include lewd criminal conduct (reduced or negotiated to a lower charge), even when the lewd actor lies about his guilt to a sitting judge?

"As a practical matter, the phrase [high crimes and misdemeanors] means whatever any given House and Senate say it means in any given impeachment or trial."

Yes, and the phrase apparently means whatever pundits or bloggers or others say it means when trying to defend their oxen from getting gored.

"As a practical matter, it's premature to address the possibility of impeachment for Craig; or put another way, it's too soon to conclude that he won't eventually 'go quietly.'"

Perhaps, which is why I am asking conservatives now, and not later when the issue is rendered moot. Are you telling us that you honestly believe that Bill You-know-who should have been impeached but Larry Wide-Stance should not?

FWIW, I don't think Larry Craig should be impeached. I'm sure he will step down voluntarily. When the GOP throws one of their own under the bus, he stays under the bus.

VR - I don't understand why expulsion would be considered an exclusive remedy, particularly if a sitting senator has been impeached.

(12) Friend #6 made the following comment | Aug 30, 2007 10:02:42 PM | Permalink

"Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room."

Yea, I agree with Friend #1. He may be legally guilty, but he -- obviously -- has a First Amendment right to plead his actual innocence to the public or the "pardonator" all he wants. And since someone might plead guilty when they are not really guilty (e.g., to avoid the trial penalty), Craig may even persuade some people that he wasn't really guilty. Maybe he won't. But he's free to try, and it's hardly a crazy argument.

(13) David Schwartz made the following comment | Aug 31, 2007 3:37:42 AM | Permalink

Though I don't think it happened in this case, it's also possible that the peeping charge was thrown in just to ensure a quick guilty plea on the lesser charge.

It's not too uncommon, especially when the officer is the only evidence on the prosecution's side, to stretch facts to just barely fit a more severe charge. The mere threat of a possible conviction on the more severe charge ensures a quick guilty plea on the lesser one.

As for your argument about pleading guilty, I think it's crazy. What if a person is framed so well that he feels he has no chance with anything but a guilty plea? Are you saying he can't explain that his guilty plea was strategic? Aren't most guilty pleas strategic? That is, when deciding whether to plead guilty, isn't the main question the likelihood that you will be found guilty?

(14) Bad made the following comment | Aug 31, 2007 10:07:00 AM | Permalink

I have an alternate take:

The charges never would have held up in court, and the officer and eventually any prosecutors involved knew it. Craig's alleged peeping had an easy avenue of reasonable doubt: the officer had been sitting in the john for at least TEN MINUTES, so someone could simply have been wondering what was taking so long (nor are eyes passing in front of the slit of the stall definitely peeping).

This was a case of blackmail, not legitimate prosecution. They threatened to embarrass Craig unless he gave them a conviction.

The real question is how systematic this scam is, and how many people they've entrapped using these tactics.

The tape of Craig's interrogation makes this clear: the officer, in fact, clearly threatens Craig with going to court after offering him the chance to plead guilty and "you won't have to explain anything."

Under my interpretation, the officer's conduct here was nothing short of despicable.

I think my interpretation is equally plausible.

(15) Beldar made the following comment | Aug 31, 2007 10:52:37 AM | Permalink

Bad, I appreciate the comment, but emphatically disagree. Your interpretation doesn't fit the procedural facts. When the peeping charge was dismissed, no one was there arguing for Sen. Craig. He had mailed in his guilty plea on the disorderly conduct charge. There was no defense motion to dismiss the peeping charge, and the prosecution wasn't exactly likely to make the entrapment/abuse sort of argument you've made.

You're entitled, of course, to your opinion as to the propriety of the sting operation and Sen. Craig's arrest. But your suggestion as to how and why the peeping charge was dismissed is unsupported even by Sen. Craig's press statement. Can anyone imagine that if he'd been successful in persuading the judge to dismiss the peeping charge (other than as part of a negotiated plea bargain), he'd have failed to mention that?

(16) Christoph made the following comment | Sep 1, 2007 9:25:36 AM | Permalink

[In response to your comment at Patterico.com, where this is cross posted]

First: Blithe analogies to signals sent and received in other settings simply don’t work. That Craig’s actions involved a physical setting which includes a reasonable expectation of privacy is absolutely key to making out a criminal offense for the disorderly conduct charge, just like it would have been for the peeping charge.

Beldar, you're a bright person, but not only wrong, you're 180° wrong here.

According to the cop as no less of an authority, this is a common place for gay men to meet. Apparently, and unknown to me or most heterosexual males, these are the signals gay men use and this is the basis, the whole reason why the cop is there. It's the basis for his arrest.

So it's not "blithe". If, in response to Craig's foot tapping, the cop was giving an agreeable signal in a common meeting place for men, using signals which are apparently well known and certainly known to the cop, then he's forfeited his right to a reasonable expectation of privacy.

While this could be a misunderstanding on Craig's part and maybe he does not have acquiescence from the other person, he has a reasonable basis to believe he does or the whole case of the cop falls apart right there.

Second: The officer slowly raising and lowering his foot in response to Craig’s foot-tapping isn’t entrapment, even if it was intended by the officer to be viewed by Craig as an invitation to illegal conduct.

It is not entrapment.

However, what it does is make Craig's alleged subsequent action, his touching his foot to the officer's, reasonable and therefore not offensive, obscene, abusive or boisterous according to the statute.

Third: You apparently think that someone’s failure to keep his or her feet flat on the floor translates into an invitation for people in adjacent stalls to intrude into one’s own stall, such that the intrusion becomes consensual and thus can’t tend to cause alarm. I’m reasonably confident that most of us citizens who don’t invite anonymous public bathroom sex and who may nevertheless, from time to time, slowly raise and lower a foot inside our bathroom stalls, will be alarmed...

And therein again lies the problem with your reasoning.

Yes, I slowly move my foot up and down. I also tap it. And I reach down below the level of a toilet divider.

I can't remember every time I've done this. But you may assume it is several.

All of these can be interpreted innocently. In my case, they certainly were.

But in Craig's case, his foot tapping is a signal he wants to have sex.

The cop, who acknowledged he is very aware of all the details of this sexual meeting code, well, his foot movements immediately after receiving an alleged sexual invitation from Craig's don't count.

You're simply giving inadequate weight to freedom and anyone, even gays' who are strangers to each other in public, freedom to communicate in non-obscene ways.

Whatever Craig did, it wasn't obscene and as established in two, was not, beyond a reasonable doubt, offensive, abusive or boisterous because of the cop's reply to Craig's alleged signal.

Or if the cop's reply is innocent, then Craig as the defendant should be given a similar benefit of the doubt for his hand gesture and foot tapping.

(17) Christoph made the following comment | Sep 1, 2007 9:40:30 AM | Permalink

Posted by: Bad on Aug 31, 2007 10:07:00 AM

Bad, I emphatically agree with you especially about the cop and prosecution's actions being despicable.

(18) Beldar made the following comment | Sep 1, 2007 10:20:29 AM | Permalink

Christoph, let's you and I continue our comments just over at Patterico's, please, rather than both of us trying to cross-post here. Any of my readers who are intrigued by your arguments can follow this link to WLS' post there.

(19) Xrlq made the following comment | Sep 1, 2007 2:22:11 PM | Permalink

If Craig is telling the truth now, namely that he falsely pleaded guilty to an offense he knew at the time he hadn't committed, how is that not perjury?

(20) Beldar made the following comment | Sep 1, 2007 2:30:25 PM | Permalink

Xrlq: Neither the plea nor the press conference was under oath, for one thing.

(21) Xrlq made the following comment | Sep 1, 2007 2:40:59 PM | Permalink

The press conference obviously wasn't, but I'd have thought the plea would have been. I realize it's not perjury to plead not guilty when you are guilty, but always thought that was the exception to the rule, not an instance of a greater rule whereby anybody and everybody can plead everything however the hell they want.

(22) Beldar made the following comment | Sep 1, 2007 2:47:51 PM | Permalink

Xrlq, the plea was by written motion, signed and mailed in by Craig, but not verified by a notary or otherwise made under oath. He didn't appear in person, and there was no sentencing colloquy, because this was a misdemeanor.

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