September 05, 2007
Could Larry Craig Really Reverse His Plea? Jiminy!
After a week of being the target of assorted scatological and sexual jokes, Idaho Republican Larry Craig is embarking on a damage-control offensive to clear his name and keep his job.
The senator appears to have realized -- about a month too late -- that he had a pretty good shot at beating that disorderly conduct charge. Ditto the fact that attorneys are generally good to have around when you're tussling with the police. Under the recently retained advisement of top-flight legal eagles Stanley Brand and Andrew Herman, Craig is fighting a Senate Ethics Committee complaint and reconsidering his announced resignation.
"Stunning" is a word being bandied about a lot today. Even though Pennsylvania Republican Arlen Specter was one of the first to pick up on the bailout clause in Craig's resignation speech, hardly anyone else believed Craig might try to finish out his term. Craig's already suffered enough embarrassment for a lifetime; it may now be his turn to shame the Republicans who abandoned him.
Craig has a good deal to work with here. He only pleaded guilty to disorderly conduct, which we noted yesterday was a trifle compared with what lawmakers like David Vitter and Patrick Kennedy seem to have gotten away with. Nowhere in Craig's plea (read it here) is there a mention of lewd conduct or an attempt to solicit sex. Nor did prosecutors hit him with a Peeping Tom charge.
Here's exactly what Craig copped to: "Engaged in conduct which I knew or should have known tended to arouse alarm or resentment of others, which conduct was physical (versus verbal) in nature.”
That's pretty vague, to say the least. Craig maintains that he agreed to a plea bargain in the hope of keeping his arrest a secret. His failure to realize that his arrest was on the public record and would eventually surface is pretty worrying. He should have known well enough to call an attorney, and it's a mystery why he wouldn't tell his wife and family. But poor judgment doesn't always equal criminal behavior, and a solid defense team could give the court reason to reconsider his plea.
Under Minnesota law, a district court may allow a defendant to withdraw a guilty plea if s/he can show that the plea was not accurate, voluntary or "intelligent." Let's tackle those requirements one at a time.
Accurate. In his post-arrest interview with the officer, Craig basically says he had no idea that toe-tapping or foot-sliding or reaching his hand under the stall construed an invitation to sex. What his attorneys may do is not only argue that he didn't know but that he could not know, thereby satisfying the accuracy requirement. Considering that none of the men who contend they've dallied with the senator are willing to go on the record, it's unlikely they'll come forward to testify in court. As we've all learned, the rules for secret cruising are hardly universally known, and that could be enough to give a judge pause.
Beyond that, "having a wide stance in a men's room isn't a disorderly conduct," says Peter Rubin of Georgetown University Law School. If just one of the requirements isn't fulfilled, Minnesota law considers the plea a "manifest injustice" and requires the defendant be allowed to withdraw the plea.
Voluntary. Certainly, a weaker prong for the defense to rest its hat. That Craig erred in not hiring an attorney and signing a guilty plea when he insisted he was innocent is the understatement of the season. He's a senator, and in that regard he most definitely should have known better. But that may depend on how prosecutors approached Craig, says Ted Sampsell-Jones of the William Mitchell College of Law in St. Paul.
"Simply threatening more serious charges doesn't count as improper. That's how plea bargaining always works," Sampsell-Jones says. "But if the prosecution promised him something else, if they promised him they would keep it quiet when he pled guilty, that would count as improper inducement."
We don't know what the prosecution said to Craig and probably won't until he gets to court. He hasn't accused them of making that promise, though, and one would think he would have already if it was true.
Intelligent. This basically means that Craig needs to have understood what he was pleading guilty to. It would only invite more ridicule if he were to argue otherwise, so don't expect his attorneys to go there. If you're wondering if Craig can seek relief on a harm basis -- that is, the guilty plea was meant to protect his family but instead ruined their lives, etc. -- Sampsell-Jones says no, the court is not allowed to consider harm or collateral consequences.
Sampsell-Jones also agrees that the disorderly conduct charge is pretty fluffy. "Tapping my foot really just doesn't count as disorderly conduct. It's not the sort of thing that would arouse or cause resentment in a reasonable person," he says. "If we went to trial there's no way you could have convicted me of this crime."
Craig maintains his toe-tapping, wide-stance sitting and hand waving were completely innocent. The plainclothes cop who arrested him says otherwise. The media and punditry have largely sided with the police officer, based on the airport bathroom's apparent popularity among anonymous gay cruisers as well as an apparently universal bundle of gestures meant to signify cruise-readiness, which few non-cruisers were even aware existed until the story broke last week.
They're hard to hear over the snickering din, but conservatives Ed Morrissey and Ben Stein, as well as gay activist blogger Chris Crain are among the few calling for a time-out before Craig is thrown in the dock. Some of Craig's defenders believe that he is gay, but also that it's irrelevant -- he committed no known crime that merited his getting dumped from his Senate committees, least of all the chamber entirely.
Specter remains the most prominent of Craig's defenders. The leadership can't run away from the Idaho senator fast enough, and today, Minority Leader Mitch McConnell received Craig's assurance that he would stick to the Sept. 30 resignation date if he can't get his plea vacated within the month. Meanwhile, as the giggling dies down, the GOP may want to rethink their post-Mark Foley era policy of throwing members off the cliff based on unsubstantiated rumors that they might be gay. Since some gay activists consider it their mission to out any lawmaker who's declined to support full same-sex marriage rights and the like, male lawmakers maybe should have paused before they threw Craig to the wolves.
Photo by Ryan Merrill
Posted at 4:51 PM
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Arlen Specter, Congress, Larry Craig, Senate
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