A Stitch in Haste

Gays! Public Bathrooms! Lewdness!

Republican!:

Sen. Larry Craig of Idaho was arrested by a plainclothes police officer investigating complaints of lewd conduct in a men's restroom at the Minneapolis-St. Paul International Airport, according to a report just issued by Roll Call.
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In October 2006, Craig's office publicly denied allegations that he was a homosexual made by a gay activist website, calling it "completely ridiculous" with "no basis in fact."

Craig may be a closeted homosexual. But he is an out and proud Republican:

Goal Three: Defend and strengthen the traditional values of the American family.

Perhaps he should have focused a bit more on Goal Seven.

Need more irony: He chaired the Senate Republican Policy Committee for several years. Remind me again what the Republican policy on gays and public morals is?

Need still more irony? He's up for re-election in 2008. Or, more correctly, his Senate career ends in 2008.

More thoughts, and highlights from Craig's self-loathing voting record on gay rights, at Obsidian Wings.

Two more hasty stitches on the Larry Craig incident:

1. I wondered how long it would take for some people, most likely my fellow libertarians, to ask whether Craig's conduct should in fact be a crime.

The first example I've seen comes from Citizen Crain:

Craig then "tapped his foot," reported Karsnia, who "recognized this as a signal by those who wish to engage in lewd conduct." I'll leave it to you whether there might be one or two or 13 more innocent explanations for such behavior.

Finally, Craig's foot tapping crept over into Karsnia's stall and even made contact with Karsnia's foot. Craig then swiped his hand a few times under the stall divider, enough that Karsnia could see his fingers and even his gold wedding ring — a point Karsnia made sure to include in his report.

Based on this and this alone, Craig was arrested for lewd conduct. Now I'll admit to being much more naive than Sgt. Karsnia about the etiquette of toilet sex, but exactly how was this lewd? Strange? Yes. Annoying? Absolutely. Lewd? Explain that to me again.

Sorry, no. Intentionally (such things cannot happen unintentionally) touching the foot of the person in the toilet stall next to you and reaching underneath the divider are, by any denotation, "lewd" acts. They are also (assuming an innocent private person is in the next stall), a properly proscribable act. If the purest definition of libertarianism is "the right to be let alone," then surely there is a right to be let alone in a toilet stall.

There is also, of course, no evidence of entrapment.

What would be legitimate concerns, which I hope do get raised subsequent to this story, are these precedent questions:

--Is it a proper, or wise, expenditure of law enforcement resources and taxpayer money to have undercover officers sitting in airport restrooms waiting to be cruised by self-loathing gays? Or are the terrorists hiding and plotting in the toilet stalls now?

--Is it proper to combat an offense that, as a matter of simple logistics, can only be committed by gays? I suppose straights can be lewd elsewhere in an airport, but is casing the restrooms per se discriminatory?

More thoughts at Bilerico.

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2. Craig suggests that we ignore that guilty plea behind the curtain:

I should have had the advice of counsel in resolving this matter. In hindsight, I should not have pled guilty. I was trying to handle this matter myself quickly and expeditiously.

Just one problem with that: Pleading guilty when you know you're not is potential perjury —

Before the court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the court or counsel in substance as follows:
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6. Whether the defendant understands the nature of the offense charged.

7. Whether the defendant believes that what the defendant did constitutes the offense to which the defendant is pleading guilty.

The court with the assistance of counsel, if any, shall then elicit sufficient facts from the defendant to determine whether there is a factual basis for all elements of the offense to which the defendant is pleading guilty.

--Minn. R. Crim. Proc. 15.02

It is possible, indeed likely, that Craig was not under oath at the plea hearing, since he was charged with only a misdemeanor. Still, lying in court is lying in court: Out of the sexual pervert frying pan and into the moral defective fire is an improvement?

Incidentally, lack of counsel would certainly be grounds to withdraw the plea, at least for a while. If Craig decided after the fact that he instead wanted his day in court, he could still have gotten it. Perhaps not now, after so much time has expired. But he could have. I suspect, however, that we will not see such self-vindicating efforts from the guilty-pleading senator.

The plea document is here.

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Finally, a summary of Craig's self-loathing bigot votes here.

I've had to leave the following comment, or something similar, at three blogs and in an email, so I might as well post it here:

Yes it is a proper function of government to criminalize Larry Craig's conduct. Those who disagree are, based on what I've read, wilfully omitting key facts:

--Like how Craig peered into the stall through the door crack to the point where the sergeant could see that he had blue eyes.

--Like how Craig intentionally and offensively touched the sergeant's foot. In another context that could be called "battery."

--Like how Craig intentionally and offensively reached into the sergeant's stall with his hand, to the point where he could see Craig's wedding ring. In another context that could be called "assault."

--Like how there is no duty for someone in a toilet stall to indicate non-consent. I should not have to say to a leering pervert, "Go away. I'm not interested." (Compare: Does leaving my front door unlocked constitute "consent to be burglarized"?)

--Like how the "interference with privacy" charge was not "thrown out" but was dismissed as part of the plea bargain. Had Craig pleaded Not Guilty, then he would have indeed gone to trial on the Peeping Tom charge, not just the lesser Disorderly Conduct charge that is now on his record.

Bottom line: Craig was not "arrested for foot-tapping." It's inaccurate and disingenuous to suggest otherwise.

If the purest expression of libertarianism is the "right to be let alone," then surely that includes "while in a toilet stall." And if there is such a right, then there is at least some police power to guard that right.

Where every commentator I've read has been spot on, meanwhile, is in asking why the airport didn't just hire a porter or steward to monitor the restrooms. Why a sting operation, even given the apparent history of lewd conduct there? A quest for fines? Anti-gay bigotry? This is a vital question that ought to be asked — and answered. In that I think we are all in agreement. I raised a similar question in my first post on the subject.

More than one Republican senator are calling for Larry Craig to resign:

Several Republicans called for Mr. Craig to resign, among them Senators John McCain of Arizona and Norm Coleman of Minnesota and Representative Peter Hoekstra of Michigan.

"My position is that when you plead guilty to a crime, you shouldn't serve," Mr. McCain said in an interview on CNN. "That's not a moral stand. That's not holier-than-thou. It's just a factual situation."

Mr. Coleman issued a statement saying Mr. Craig had pleaded guilty to "a crime involving conduct unbecoming a senator," adding, "He should resign."

McCain, Coleman et al are of course correct — Craig should resign. That's not the point.

The points are:

1. McCain's befuddled insistence that his is not "a moral stand" makes no sense. Of course it's a moral stand: "If you were moral, then you would resign." Would McCain feel better if we switched to the preferred radical social conservative term: "values"? "If you had traditional family values, then you would resign..."? (Hat tip to Hodak Value for this observation.)

2. Far more importantly: How is it intellectually consistent for sitting senators to call for another senator to resign for misconduct, but not to initiate proceedings to expel such a senator?

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. (Article I, Section 5)

The indignant senators don't need to just "hope" that Craig "does the right thing." They can kick him out. Finding 67 senators who agree might be pragmatically impossible, but so were, e.g., the federal bigot amendment and the flag desecration amendment. But the (Republican-controlled) Senate went through the motions anyway — because it was (supposedly) the "moral" thing to do.

Incidentally, speaking of Senate votes that were doomed to fail, McCain voted to impeach Bill Clinton. If a strictly symbolic vote was appropriate to expel one pervert in high office, then why not another? The double-standard becomes even more laughable given that Craig actually pleaded guilty to a crime — a crime of moral turpitude. Clinton, though an admitted defiler of the Oval Office, had no comparable criminal record — he "only" committed a constitutional misdemeanor. So which lecher more deserved a formal, constitutional removal from office: the one with a criminal record or the one without?

(Make no mistake: I believed then and believe now that Clinton should have been convicted in the Senate and removed from office. But surely Craig's status is more deserving of constitutional removal from office than even Clinton's sickening acts.)

McCain, Coleman and their cabal should — forgive me — either foot-tap or get off the toilet. If Craig should go, then kick him out.

More thoughts at QuizLaw, InterstateQ, Box Turtle Bulletin, John Steele Gordon.

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The audio of Craig's post-arrest interrogation available here.

For kink and country:

In a brief public statement in Boise, Craig apologized to supporters, family members and Idaho residents "for what I have caused." He did not refer to any specific actions or admit wrongdoing.
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The guilty plea, in which Craig admitted engaging in physical conduct that "tended to arouse alarm or resentment in others," exposed the socially conservative lawmaker to charges of hypocrisy. A champion of family values, he had supported amendments to the U.S. and Idaho constitutions banning same-sex marriage.

Again, he was not "arrested for foot-tapping." It is disingenuous to suggest otherwise.

And speaking of disingenuousness, many have asked, "Why Larry Craig and not David Vitter?"

There are three possible explanations:

1. Craig actually pleaded guilty to a crime; Vitter merely acknowledged having engaged in illegal conduct.



2. Craig's misconduct was connected to gay sex; Vitter's was connected to straight sex.



3. Craig's replacement will be named by a Republican; Vitter's would be named by a Democrat.

Draw your own conclusions about which factors are at work.

"I will continue to serve Idaho in the United States Senate, and there are several reasons for that. As I continued to work for Idaho over the past three weeks here in the Senate, I have seen that it is possible for me to work here effectively."
--Liar, criminal, promise-breaker (oh, and homosexual) Senator Larry Craig

I have nothing to say that I haven't said previously:

If there was a ever a real-word version of the decrepit, corrupted and corroded character Gollum, then it is Craig: a man so hopelessly at war with himself, and so entranced by his ("precious") political office, that he simply cannot grasp how meaningless, and how hopeless, his own repulsive existence has become.

Meanwhile, let's see how long it takes for his fellow moral defectives in the Senate minority leadership to strip Craig of his committee assignments, or — dare one hope? — to initiate expulsion proceedings.

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Judge's denial of motion to withdraw guilt plea here.

Self-loathing homosexual and pathological liar (oh, and United States Senator) Larry Craig has concocted yet another way to not go quietly into that bad night:

Craig will argue before an appeals court that Minnesota's disorderly conduct law is unconstitutional as it applies to his conviction in a bathroom sex sting, according to a new court filing.

This is the first time Craig's attorneys have raised that issue. However, an earlier friend-of-the-court filing by the American Civil Liberties Union argued that Craig's foot-tapping and hand gesture under a stall divider at the Minneapolis airport are protected by the First Amendment.

As I've blogged previously, one can only de-legitimize the criminalization of Craig's conduct by ignoring or misrepresenting what that conduct actually was:

--Craig peered into a closed bathroom stall, to the point where the undercover officer could see the color of Craig's eyes. This is constitutionally protected conduct -- how?

--Craig reached under the divider so deeply that the officer could see Craig's wedding band. This is constitutionally protected conduct -- how?

--Craig physically touched, without consent, another person. This is constitutionally protected conduct -- how?

The fact that the person in the other stall was an undercover police officer does not negate the fact that the person in the other stall was a person -- a person in the most private zone in the universe.

There is no First Amendment right to be a Peeping Tom. There is no First Amendment right to intrude upon another human being's most private bodily functions. There is no First Amendment right not to care whether another person might be neither a cop nor another consenting cretin before intruding upon his most inhibited zone of privacy.

Yes, it is all about rights -- the right not to have to deal with perverts in a public restroom. The right not to have to worry if your child wants to "act grown up" and go to the toilet unaccompanied. The right to insist that self-loathing gays accept the consequences of their self-loathing. The right to mock the mockworthy.

Those are the only rights at issue here.

Self-loathing homosexual Larry Craig has filed his appeal of the denial of his request to withdraw his guilty plea to misdemeanor disorderly conduct (through which he avoided the additional charge of "interference with privacy").

The ACLU, meanwhile, has refiled its original amicus brief in support of Craig's frivolous motion to withdraw his guilty plea The offense to which Craig pleaded guilty is, the ACLU argues, unconstitutional (i.e., at least some of Craig's conduct is constitutionally protected).

The 12-page memo-brief was actually drafted back in September, and I do not intend to critique it now. Neither will I rehash the Craig incident generally, other than to summarize my still-held position that libertarians who defend Craig's conduct have only been able to do so by omitting key facts regarding the incident.

The only additional point that need be made at this juncture is to remind people that Craig pleaded guilty, and the only question now before the courts is whether he is entitled to withdraw that guilty plea. The fact that the underlying law may or may not be constitutional is irrelevant to that question. If Craig had any affirmative defenses (constitutional or otherwise) to make, then the opportunity to make them would have been at trial (or appeal of a conviction). By pleading guilty, Craig waived those arguments, and they are moot now (except as an academic question).

Whatever the nuances of Minnesota law regarding plea withdrawals may be, they surely revolve around a standard due process rule: a plea of guilty, like any waiver of rights, must be knowing and voluntary. That is the only question to be answered at this stage: Was Craig's guilty plea knowing and voluntary?

And to that the only rational answer is: Duh! Senator Craig is not a lawyer, but neither is he a bumpkin. He pleaded guilty months after the fact and by mail; this was hardly a panic-stricken or morning-after hangover decision in a foreboding away-from-home courtroom. He had unfettered access (again, for months) to counsel and political staff (not to mention his family — oh right, "closeted homosexual," never mind). He made a conscious, calculated, sober (and politically motivated) decision to try to "keep it quiet." A decision that, too bad so sad, happened to be wrong. But that is hardly prosecutorial tyranny or an egregious miscarriage of justice.

It would be hard to concoct a fact pattern that was more "knowing and voluntary" than Craig's conduct after the incident. "It didn't turn out the way I planned" is simply not grounds for revoking a perfectly legitimate guilty plea. (Indeed, the ACLU's September 2007 memo-brief does not contain a single case or statute supporting the withdrawal of Craig's guilty plea — only constitutional arguments regarding the original incident — which again are wholly irrelevant now.)

The Sméagol of the Senate is hardly the victim he and and the ACLU portray him to be — trying to game the system and failing is not "being victimized." And this sideshow will only demean the far more legitimate claims that true victims of overbroad laws and overzealous prosecutors may face in the future.