The Volokh Conspiracy

It's Official:
Larry Craig is resigning, effective one month from now. It's interesting to consider what role the Internet had in speeding this along. The story broke on Monday. Thanks to the Internet, anyone interested in this story could see the original court documents, read the police report, listen to the post-arrest interview, and watch and read the entirety of Craig's press statements. With all that evidence so widely available so soon, it's not surprising that Craig would announce his resignation only five days later.
BruceM (mail) (www):
[Deleted by OK. Please keep it civil, Bruce.]
9.1.2007 1:40pm
Keyes:
And GOP Senator David Vitter from Louisiana is resigning when, exactly?

Oh, that's right . . . he paid for sex with a woman.

Now I see the difference.

Maybe if Craig had offered to pay the undercover cop, the GOP's Senate leaders wouldn't have forced his resignation.

Yeah, yeah, that's the ticket.

[OK Comments: Keyes, do you think the GOP Senate leaders forced Craig's resignation? If so, how?]
9.1.2007 1:42pm
Tony Tutins (mail):
[Deleted by OK. No need for explicit descriptions, Tony.]
9.1.2007 1:51pm
Dr. Weevil (mail) (www):
Following BruceM's logic, I suppose we must conclude that "every single one" of those Nazis was secretly Jewish -- no exceptions. Or perhaps he's just a bigot himself, of the anti-Republican variety.

As for Keyes' logic, once difference between Vitter and Craig is that Vitter's offense was behind closed doors. Another is that it was years ago. The fact is that comparing Vitter to Craig is like comparing an apple to an orange: you can easily make either one look worse by careful selection of criteria.
9.1.2007 1:56pm
Tony Tutins (mail):
Sorry. How about this?
Another difference between the two: Vitter's act was done in privacy; Craig's attempted act would have been in a publicly accessible place open to males of all ages.
9.1.2007 2:00pm
Public_Defender (mail):
This is sad. Craig's main offense was to his marriage, and my guess is that Congress would lose a lot of members if every member who had an affair resigned.

This is one political scandal for for which Republicans have only themselves to blame. They are the ones who turned on Craig. The jokes would have passed, but the Right Wingers went in a tizzy over the gay angle of this case. It's too bad Craig couldn't just fess up, apologize, and rededicate himself to his wife.

As to the "crime," Professor Carpenter was right. It's doubtful he really committed a crime. The police officers who put on stings like this and then shame people into copping pleas when they have committed no crime really should be ashamed of themselves.
9.1.2007 2:01pm
Tony Tutins (mail):
PD, I would have agreed with you. But a link provided by Dan Savage of Savage Love to a practitioner of anonymous restroom sex indicates that Craig's actions according to the police report were unambiguous, and in fact, Craig did everything except the last act necessary to complete the crime.
9.1.2007 2:15pm
JosephSlater (mail):
Orin:

Wasn't it pretty clear that the Republican leadership was calling for Craig to resign?
9.1.2007 2:24pm
Keyes:
Dr. Weevil said:

As for Keyes' logic, once difference between Vitter and Craig is that Vitter's offense was behind closed doors. Another is that it was years ago. The fact is that comparing Vitter to Craig is like comparing an apple to an orange: you can easily make either one look worse by careful selection of criteria.


Bill Clinton's intern-sex was "behind closed doors". When it came out, it was "years ago" like Vitter.

But the funny thing is the same GOPers who've run Craig out and who applauded Vitter didn't see the apples and oranges that Dr. Weevil does.

All the GOP saw was politics . . . and running Vitter out of office won't help the GOP now.

Not apples and oranges. Just the usual GOP "conservative" double standard.
9.1.2007 2:27pm
OrinKerr:
Joseph,

I remember that two GOP Senators -- McCain and Coleman -- did; I don't recall the GOP leadership calling on it, though. Although I think it was clear once the polls came out that Craig was doomed.
9.1.2007 2:29pm
Public_Defender (mail):

Wasn't it pretty clear that the Republican leadership was calling for Craig to resign?


The Republican leadership stripped Craig of his committee seniority and asked for an ethics investigation. That's not exactly saying, "welcome back." And they did so based on one of the lowest level misdemeanors out there. This case could set a precedent that will come back to bite them.
9.1.2007 2:30pm
Duncan Frissell (mail):
Oh, that's right . . . he paid for sex with a woman.

We actually don't know what happened. A phone number linked to him appeared in the business records of an escort service. He said he 'sinned' but no one has specified the sin. Unclean thoughts are a sin for some of us.

I wonder why the senior Senator from Idaho didn't invoke the "arrest" clause of the Constituution to walk. It would at least have increased the entertainment value of the proceedings.
9.1.2007 2:31pm
Tony Tutins (mail):
Keyes: Bill Clinton was impeached for the same offense that Scooter Libby was convicted of: lying under oath to a grand jury. I don't see how a double standard applies.
9.1.2007 2:33pm
Dave Hardy (mail) (www):
And GOP Senator David Vitter from Louisiana is resigning when, exactly?

Oh, that's right . . . he paid for sex with a woman.

Now I see the difference.


You're too idealistic. This is Washington. Try:

Louisiana has a Democratic governor, who would appoint a Demo to Vitter's post, raising the Demo Senate advantage by one.

Idaho has a Republican governor, who'll appoint a Repub to Craig's post, leaving the Senate count unchanged.

That I suspect explains the difference.
9.1.2007 2:34pm
JosephSlater (mail):
Orin:

It was more than just those you mention. See this Detroit News article.

A couple of quotes:

Senate Minority Leader Mitch McConnell today called Craig's conduct "unforgivable" and acknowledged that many in his caucus believe Craig should resign. . . .

Craig pleaded guilty to disorderly conduct on Aug. 1, and while he has since said he did nothing wrong, the episode has roiled the Republican party and produced numerous calls for him to step down.

As a measure of the pressure Craig faces, party officials said a statement had been drafted at Republican Party headquarters calling for the third-term senator to resign. It was not issued, these officials said, in response to concerns that it might complicate quiet efforts under way to persuade the 62-year-old lawmaker to give up his seat.


Mitch McConnell, the minority leader called Craig (or his acts) "disgusting" and called on him to resign.
9.1.2007 2:39pm
JosephSlater (mail):
Whoops, sorry about that last sentence there; I originally wanted to paraphrase, then decided just to cut and paste. Preview is my friend, preview is my friend. . . .
9.1.2007 2:40pm
OrinKerr:
Got it -- thanks, I hadn't seen that.
9.1.2007 2:41pm
Dave N (mail):
The case this most strongly resembles involved Congressman Jon Hinson of Mississippi, who resigned in 1981 after being caught in a public restroom (in the Capitol) engaging in oral sex with another man.

As to the double standard between Senators Vitter and Craig--I think the critical differences are a) Craig pleaded guilty to a crime; b) involving activities that happened in a public place.
9.1.2007 3:25pm
gamma (mail):
The REAL Elephant in the Room

I have no idea if Larry Craig is a good man or a good legislator, but I do know that the reason for his resignation is pathetic. Democrats and liberals are glad to see him go and they don't care why. The spineless Republicans and conservatives are eager to distance themselves from the latest scandel (especially as it may involve the "gay" word).

The sad reality is that Americans refuse to accept human sexual nature. Do we really want to be governed exclusively by men and women who are so abnormal or out-of-touch with their own sexuality that they engage in only plain vanilla sex with one partner behind closed doors? I do not see such people as representative of the Americans I know nor do I see them as fit to govern in this world where governance is all about understanding humanity and human frailty.

And let's be clear - the laws/regulations about solicting sex in bathrooms is explicitly intended to be anti-gay. What are all those singles bars for, if not for soliciting sex in public? Is there anyone out there who desn't know a hetero guy who had sex in a public bathroom with a girl?
9.1.2007 3:34pm
Tony Tutins (mail):
What are all those singles bars for, if not for soliciting sex in public?

This discussion reminds me of a cartoon I saw in the National Lampoon years ago. A well-dressed mother and father were seated around a table with their son. The caption was, "Yes, Billy, masturbation is normal. Just not at the dinner table."

The big differences between a singles bar and an airport restroom as a sex-solicitation venue:
1. People are on notice that they're entering a singles bar.
2. The singles bar is age-restricted to legal adults.
9.1.2007 3:48pm
NickM (mail) (www):
gamma - I know a straight guy who lost his jobs after being arrested for having sex with a woman in a public bathroom. I also know one whose wife left him and got sole custody of the kids after he was arrested for having sex with a woman (not his wife) in his car. [I don't know the women involved, so I have no idea what happened to them beyond the fact that they too were arrested.] If you think that having sex only in PRIVATE places makes you abnormal or out-of-touch with your sexuality, perhaps you're the one who's abnormal or out-of-touch, not the rest of the country.

Nick
9.1.2007 3:52pm
vinnie (mail):
First of all EVERYBODY lies about sex. Once you learn to accept that from your clergy and your grandmother it is easier to move on. That being said Craig broke the law while he was a lawmaker. If the jackasses making the laws don't fallow them why the hell should anyone else? He was my senator. I will miss his protection of my second amendment rights. I will not miss the fact that he couldn't ship my job and my customers jobs over seas fast enough. He tried to get illegal aliens imported to cut my wages here at home.
9.1.2007 4:04pm
Dr. Weevil (mail) (www):
gamma asks "Is there anyone out there who desn't know a hetero guy who had sex in a public bathroom with a girl?"

Maybe I'm living life in the slow lane, but I'm 54 and none of my friends has ever told me he'd had sex with in a public bathroom with a girl. I'm astonished that anyone could think that my experience -- or rather my friends' lack of some experiences -- is unique.
9.1.2007 4:18pm
Truth Seeker:
gamma asks "Is there anyone out there who desn't know a hetero guy who had sex in a public bathroom with a girl?"

Once at a concert I saw a couple go into a port-a-potty and it started shaking for a while. But there is a big difference between having sex in unusual places with your mate and hitting on a strange dude in a toilet stall. The main thing is it shows poor judgment.
9.1.2007 4:39pm
V:
Gamma's point about the commonness of hetero sex in public restrooms is well taken. I recall one night my date whispered in my ear to wait three minutes and then follow her into the ladies' bathroom. Once in there we began an amorous interlude, only to be interrupted by a gorgeous blond. Upon seeing us in a state of partial undress, she asked if she could join in, and...no wait. That wasn't me. That was something I read in Penthouse Forum...
9.1.2007 5:41pm
JosephSlater (mail):
V wins the thread.
9.1.2007 6:15pm
John Herbison (mail):
Dave Hardy is exactly right. The Republican leadership circled the wagons around Vitter and threw Craig under the bus because Vitter's resignation would have allowed a Democratic governor to appoint an interim senator.

The question I have is, why are Republicans not honest or candid enough to admit that, instead of making contrived distinctions between the two?
9.1.2007 6:17pm
Tony Tutins (mail):
One difference is that Craig appears to be a serial restroom romeo. As far as I know this is the first time Vitter's patronage of prostitutes has come to public attention. The blogosphere was all giddy last October about Craig's alleged DC Union Station rest room exploits. The Idaho Statesman recaps Craig's sexual history here.
9.1.2007 6:57pm
nedu (mail):
A person whose budgetary and oversight responsibilities include programs at the DoE's Idaho National Laboratory apparently initiated clandestine activity in an airport men's room.

The officer who detected the suspicious behavior stated his belief that Senator Craig was soliciting an anonymous homosexual encounter. If the officer's background and report are credible, then I find it unlikely that Senator Craig initiated the clandestine encounter, with a person who appears to have been previously unknown to him, for any other purpose.

Nevertheless, the post-arrest interrogation does not leave me with confidence in Senator Craig's exercise of his budgetary and oversight responsibilities.

During the time remaining before the effective date of his resignation, I hope Senator Craig will cooperate in an honest and forthright manner.
9.1.2007 7:56pm
wb (mail):
It's a rather sad story to see the Republican leadership ride Craig out on a rail. Why, because Craig seemed bound to lose in a moralistic state next year. So better to get a new Republican now. Have the public identify him as a Senator and give him a year's extra seniority with respect to the newly elected in 2008. And we should not be cynical why?
9.1.2007 8:27pm
Bill Dyer (mail) (www):
Public_Defender wrote:

As to the "crime," Professor Carpenter was right. It's doubtful he really committed a crime. The police officers who put on stings like this and then shame people into copping pleas when they have committed no crime really should be ashamed of themselves.


I respectfully disagree, for reasons I've explained at length on my own blog. Specifically with respect to what's been written here, however, Prof. Carpenter wrote:

More specific criminal charges were not advanced. A charge of interference with privacy was dismissed. Craig was not charged with any other crime, like public lewdness, indecent exposure, public sexual conduct, solicitation of prostitution, harassment, resisting arrest, or assault.


That's inaccurate. The charge of interference with privacy a/k/a peeping was dismissed, but it was as part of a negotiated plea agreement. Craig was allowed to plead to a less specific crime that carries a much lighter penalty and dramatically less stigma than mere "disorderly conduct," but the complaint certainly described facts that, if proved to a jury's satisfaction, could have supported a peeping conviction. The negotiated plea reflect both sides' respective views of their potential risks and benefits on both charges.

Prof. Carpenter also ignores the broader pattern of conduct, which includes the peeping, when he's evaluating the disorderly conduct charge. He wrote (ellipsis his):

The officer might have considered Craig's actions "offensive ... conduct ... tending reasonably to arouse alarm, anger, or resentment in others." But if that's so, it seems a pretty thin basis for charging him. A reasonable person faced with Craig's alleged behavior would have moved his foot away and/or muttered a simple "no thanks" or "stop that," which likely would have brought an end to it. A continuation of the unwelcome behavior might then have been enough to charge him with something, but again, that didn't happen.


But it wasn't just the foot touching. It was foot touching (an invasion of the officer's stall), preceded by hand-waiving (another invasion of the officer's stall), plus foot-tapping, preceded by two minutes of staring (including direct eye contact) when there were available empty stalls (rebutting Craig's contention that he was just waiting for an empty stall). Certainly there are ample grounds for cross-examination of the officer. But the allegations that Prof. Carpenter describes as "pretty thin" would have been a question for the jury, because this complaint would have withstood a motion to dismiss. Had oral testimony consistent with the written report and complaint been offered by the officer from the stand, the prosecution's case would have survived a motion for directed verdict. Had a conviction been returned, that same evidence would have supported it, and would have overcome either a motion for judgment n.o.v. or an appeal based on evidentiary insufficiency.

Neither charge depended on the prosecution showing that Craig intended specifically to solicit a sexual encounter. A jury could have found an intent to invade his subject's privacy and/or offensive conduct tending to "arouse alarm, anger, or resentment in others" simply from the visual and then physical intrusions into the officer's stall, which is certainly a place where people have reasonable expectations of privacy. Intending the intrusions, for whatever ultimate purpose, would have been enough.

Finally, and most importantly: with due respect, P_D, it's not at all "doubtful that he really committed a crime." It's judicially admitted that he did, in a voluntary guilty plea that is no longer subject to motion for new trial or direct appeal: "I now make no claim that I am innocent of the charge to which I am entering a plea of guilty." Craig has not come remotely close to even alleging, much less offering proof of, facts that could support a successful collateral attack on his guilty plea. By pleading guilty, he forfeited any benefits of the doubt. You or any other pundit is free, of course, to play woulda-coulda-shoulda. But in the eyes of the law, he is guilty as long as his conviction stands (and the odds of it being set aside are vanishingly small).
9.1.2007 9:08pm
Bill Dyer (mail) (www):
I meant to say, above: Craig was allowed to plead to a less specific crime that carries a much lighter penalty and dramatically less stigma than peeping, but the complaint certainly described facts that, if proved to a jury's satisfaction, could have supported a peeping conviction.
9.1.2007 9:10pm
Bill Dyer (mail) (www):
Sorry, one more point I meant to make. What evidence do you have, P_D, that either the arresting officer or the prosecution "shame[d]" Craig into pleading guilty?

Everything I've seen is absolutely contrary to that. In the post-arrest tape, the officer pointed out that by pleading guilty, Craig wouldn't have to explain anything to the court — which is true. He said he wouldn't go to the media — and he apparently kept that promise. (News didn't break until well after the plea, and then through an anonymous tip to Roll Call.)

So how did they put the screws to this guy? Was it when the arresting officer declined to cuff him or take him to the downtown station? Was it when they let him make his flight? Was it when they offered to dismiss the charge that carries more social stigma? Was it when they left out of the written complaint the offensive episode of Craig flashing his card and saying, "What do you think of that?" Was it when they gave him several weeks to consult counsel and make up his mind? Was it when they offered to let Craig wrap the whole thing up by mailing in a plea to the lesser offense and pay a $500 fine (less than what he'd have paid for the first two hours of a defense attorney's time) — without even a public hearing, much less jail time?
9.1.2007 9:22pm
susitna:
Gamma brings up some good points, but I do not agree with the end conclusion. Sure, it's hard to untangle any sexual-political quagmire- because sexual ethics are complicated by shame, bigotry and different religious points of view. The GOP and Craig himself have wrapped themselves into a particular evangelical christian worldview, and they are going to be judged by voters according to prevailing evangelical morality. Basically, you make your bed in WWJD sheets, you're going to have to lie in it. These popular judgements may or may not be in line with more rigorous interpretations of christian theology.

As a citizen and a voter, I'm not going to lose sleep over distinctions between Craig and other adulterers, transgressors, etc. I don't care what kind of sex other people have, but it is inappropriate to have sex in public places. It's entirely possible that these laws are intended to be homophobic, which is a shame, but there is good reason to have laws against public sex regardless. Many have been pointed out- nonconsenting people can end up witnessing the act, it's unhygenic, and sheesh, it's a bummer when people lock themselves in a bathroom and make girls like me have to look frantically for other bathrooms!
9.1.2007 9:36pm
TechieLaw (mail) (www):
One thing that I find somewhat amazing here is that even after all of Craig's former friends all turned on him, Craig is still willing to fall on his own sword for the sake of the party. Perhaps he's doing this for the same reason he pleaded guilty -- to try and make this all go away as quickly as possible? Or, is he genuinely worried that if he stays, the people of Idaho will lack a voice in the Senate?

His political career appears to be over. I think I'd have a little more respect for him if he called this political witch hunt the spade that it is.
9.1.2007 10:02pm
therut:
If Europe laughed at us about the CLINTON impeachment they should be rolling in the floor over all the ink and TV time spent on a guy shoe tapping and standing wide and picking up a piece of paper in the john. Plus the fact that some cop sits in the bathroom trying to entice gay men to pick him up by toe tappping while sitting on the pot. This is just silly beyond belief. Almost as silly as gun free zones.
9.1.2007 10:09pm
Syd Henderson (mail):
I think it's educational. If I'm in a restroom and the guy in the stall next to me starts standing wide, tapping my feet and feeling around under the stall walls, I'll ask, "Dear Sir, are you some kind of a Congressman or something?"
9.1.2007 10:15pm
Tracy Johnson (www):
A comments from a local morning AM radio DJ:

"For a toe-tapping good time vote for Larry Craig!"

Later on in the week he played the "Hokey-Pokey" song.
(You put your right foot in, you put your right foot out ...)
9.1.2007 11:59pm
Glenn W. Bowen (mail):
That's four days later than I suggested to him in an email.
9.2.2007 12:15am
vinnie (mail):
Larry Craig, born in Idaho. Reared in Minnesota.

Come on these are just to easy.
9.2.2007 12:52am
Harry Eagar (mail):
Public Defender, why don't you judge the Right Wingers as 'standing firm for their view of sexuality' rather than describing their reaction as 'going into a tizzy'?

Anyhow, those of us who are not Right Wing Republicans would not have expected any less of them.
9.2.2007 1:00am
Loophole1234 (mail):
For me, it's not so much what he did (or what he clearly TRIED to do), but how pathetic and weak he looks trying to cover it up. First, he pleads guilty in attempt to keep everything quiet (and then claims innocence and tries to fight when the first plan fails). Second, he acts like he really wasn't in that bathroom looking for public sex with a stranger. How stupid does he think we are? "Wide stance"? Third, he publicly declares that he is "not gay" as if him being gay were the problem. That is insulting to gays and ignores the more important facts that (1) he is a lawmaker who admitted to breaking the law, and (2) he was trying to cheat on his wife with a complete stranger (which I as a "repressed" American prude see as an indicator of moral unfitness).

I'm glad we now have one less pathetic Senator.
9.2.2007 1:43am
Hewart:
RE the GOP reactions to Craig and Vitter:

If the distinction is being made by some GOP supporters that Vitter deserves to get a free pass from calls of resignation (in contrast to Craig) because he wasn't convicted of a crime, but merely confessed to it (while trying to obfuscate his exact involvement, of course), that seems to set the bar pretty darn low for Republican moral authority.

Taking that approach would, in fact, seem to eliminate any claim to moral authority whatever in future discussions about "family values".
9.2.2007 3:17am
Porkchop:
I was certainly willing to give the man the benefit of the doubt when this story came out. Entrapment does happen. But then I listened to the tape and heard the "I'm a wide guy" explanation for the foot-touching aspect of the police report. So, Friday, I happened to be in a restroom sitting on a toilet, so I observed the position of my feet. Now, I may not be as "wide a guy" as Senator Craig, but I simply cannot see how anyone could accidentally or inadvertently put his foot under a stall divider. That makes me very skeptical of the rest of the story, and the "picking up a piece of paper" explanation for the hand gestures made no sense, either. The man was simply not credible.

The whole concept of anonymous public restroom sex is odd to me, but I think it is reasonably accurate to say that the majority of society does not want to observe it, hence the law against it.

Interestingly (I think), a commentator on CNN noted that cruising restrooms is less common among younger gay men, because they are less inhibited in going to gay bars or other public meeting places. It is, he said, mostly a phenomenon of older men, many of them bisexual and married, who are not willing or able to meet men any other way. From that perspective this is really rather pathetic and sad, regardless of one's views about Senator Craig's behavior and its apparent inconsistency with his public statements.

Senator Craig was caught in the act and then lied about it. He can do that in the criminal justice system, but the holder of an elected office has to meet different standards.
9.2.2007 8:00am
PaulD:
Hewart,

It's worse than that. They are making the distinction turn on the fact that Vitter confessed only to a "sin" (in a context where everyone knew what he was talking about, and there was, I understand, significant other evidence of what that "sin" was) and not a "crime." A distinction, sure, but it just does not carry the weight that they want it to carry. Because the issue is not whether some set of rules technically requires the person to step down. The issue is what public acceptance of Vitter's conduct tells us about the consistency in their "defense of traditional values" position.
9.2.2007 9:13am
gamma (mail):

Putting first things first - I am abnormal and damn proud of it. "Normality" just seems like much too low a standard to shoot for.

Second, recognize that sex would not occur without initiative. Takes place all the time. The fact that police officers stake out men's bathrooms to detect such initiatives merely reveals society's anti-gay male bias. If you think unsolicited, unwelcome and unpleasant sexual advances don't occur to women in public all the time, I suggest you ask a few women you know. The behavior described in the Sen. Craig case sounds much more ritualistic and un-threatening than most of the advances I have seen men put on women.

Third, I think Sen. Vitter and Sen. Craig are probably better men for going through their ordeals and could be / have been better legislators for it. As to those of you who think that having "purged" Sen. Craig and "exposed" Sen. Vitter that you have 98 Senators left of incorruptible, high moral standing I suggest you take a much closer look.

Lastly, for those of you who think sexual adventures only exist on the pages of Penthouse Forum, you are missing out!!!
9.2.2007 1:29pm
John Herbison (mail):
Senator Craig pled guilty to a crime that he probably didn't commit (even though he may have wanted and intended to commit public indecency).

Senator Vitter admitted to "serious sin" after he was reported to be connected to madams in Washington and New Orleans. This at least strongly implies that he engaged in unlawful conduct (albeit uncharged conduct).

I wonder, what would his fellow Roman Catholic Republicans be saying now if Vitter had admitted using a condom while whoremongering?
9.2.2007 5:09pm
Randy R. (mail):
Harry: "Public Defender, why don't you judge the Right Wingers as 'standing firm for their view of sexuality' rather than describing their reaction as 'going into a tizzy'? "

Perhaps Republicans should be a little less interested in the sex lives of the citizenry, and a little more interested in, oh, I don't know, maybe the war? Or the economy?

Craig got hoisted upon his own petard (why am I the first to use that phrase here?). As long as Rebpulicans keep holding up the family values mantle while cheating on their wives, getting divorced and remarried several times, and engage in gay sex, then they will remain fodder for jokes well into late night tv. Sooner or later, they will have to realize that the holier than thou attitute isn't working for them.
9.2.2007 7:28pm
Hewart:
As to those of you who think that having "purged" Sen. Craig and "exposed" Sen. Vitter that you have 98 Senators left of incorruptible, high moral standing...

I don't recall anyone anywhere having taken that position. I doubt seriously that anyone seriously would...
9.2.2007 8:22pm