Writings and observations

Craig in review 3: The nature of the offense

On Wednesday, Idaho Senator Larry Craig’s disorderly conduct case will return to a Minnesota courtroom; there, he is attempting to withdraw his plea of guilty, and service of his sentence, on the charge. Within a few days after that, the Northwest’s senior senator (and its second most senior member of Congress) may – or may not – resign from the Senate. This the third of four essays considering the case, its causes and its effects.

Larry Craig

Larry Craig

You’ll see the question posted quite a bit, sometimes in the most unexpected place: What, exactly, was the offense here? What was it that Larry Craig did that was so horrifically wrong as to generate the kind of ferocious reaction, the nearly instant calls for resignation, that it has? And are they justified? What kind of response from Craig is warranted?

Don’t jump to a conclusion. This is more complicated than it seems, and not only because so many people – when you pin them down – give so many different answers. It’s because some of the answers may lie in the recesses of our souls, back in places few of us like to visit or even contemplate.

And some of the reasons have a good deal of validity, too.

One that makes no sense:

bullet Being convicted of a misdemeanor. There’s a reason you got your felonies and you got your misdemeanors: One is considerably more serious than the other, and one is taken as an indicator of a person really not to be trusted, while the other is simply a significant mistake. Kentucky Senator Mitch McConnell used Craig’s misdemeanor conviction in Minnesota as rationale for why he should resign from the Senate. This is a complete crock: By that standard, the nation’s president and vice president should be gone too. (Which many people might say should happen anyway, but not for that reason.) Get convicted of a felony, and you’re out of the Senate, all right, but lesser offenses aren’t, in and of themselves, quite so weighty.

bullet But he pleaded guilty to a crime. Under the law, pleading guilty to a crime and then being convicted is really no different than pleading not guilty and being convicted anyway: Either way, you are formally determined by the law of the land to be guilty. There seems to be considerable difference between the two in the minds of some people, though why exactly is less clear. Is it that the guilty plea more or less removes all doubt that he actually did it? Except, of course, that he now is denying it anyway.

There’s also a real question about the seriousness, though, of exactly what Craig did. If you point a gun at someone and demand their money, there’s no question what were the specific things you did that violated the law. But tapping a foot on the floor – what’s that? Is that a crime? Should it, could it be? What sort of innocent behavior might be snared into something like this? Who knows what’s criminal?

Some good questions here. The Minneapolis prosecutor’s office provided some clarity in their filings late last week responding to an American Civil Liberties Union filing in the case.

Prosecutor Christopher P. Renz: “The defendant invaded the sanctity of the officer’s bathroom stall, first by repeatedly staring into the stall, second by moving his foot over in a controlled and deliberate manner until it was on and touching the officer’s foot within the officer’s stall, and third by stroking his hand from front to back along the stall divider three times with increasingly greater amounts of the defendant’s hand being exposed on the officer’s side of the stall divider with each swipe. . . .The Metropolitan Airports Commission began its plain clothes detail of the men’s restroom at the airport on the heels of an incident in which a private citizen was seated in the stall, the individual next to him invaded the space of the adjacent tall and looked up under the stall divider. The victim was so upset that he waited for that defendant to come out of his stall and took him to a security checkpoint to call the police. This kind of conduct . . . angers and alarms people. It is hardly a stretch to understand that many peope attempting to use a public bathroom stall for the purposes for which it was intended, purposes which are personal and intimate to one’s hygeine and which require disrobing parts of one’s body generally considered private, and who experience this kind of conduct, would be prompted to fight or otherwise immediately breach the peace as to the offending individual.”

This, he argued, is disorderly conduct. We’d have to agree there’s a rational basis for that.

And: “In interviews of defendants arrested on similar charges, as well as reusltat reviews of websites, it is clear that sexual relations for which people had been communicating in the restroom were relations that occurred in the public restroom, not elsewhere. Therefore, the suggestion by the amici curiae that the defendant’s conduct was an invitation for private sex (which Defendant denies) and therefore cannot be criminalized is not only legally flawed but is at odds with the experience of the airport police officers in other cases involving similar conduct.”

You can never be sure what a judge will do, but we suspect the Minnesota judge will side with the prosecutor in Craig’s attempt to throw out his guilty plea, partly because of the explanations he offered here. And the ACLU’s argument that the state law is flawed seems worthy of our consideration (whether or not the court’s).

Still. Was there a real offense, something unmistakable for random behavior that just anyone – visiting a rest room for the conventional purposes – might engage in? We’d say so, that the prosecutor’s argument here is rational on both legal and common sense bases.

Assuming all that, is this cause for, say, expelling a senator from the Senate? No. It does not indicate corruption or inability to do the job, the normal kinds of reasons people should be bounced from public office.

bullet Trying to wiggle out. Craig’s defenders (they still exist) make the case that he is absolutely entitled to pursue what he sees as justice in the court system. Fair enough, as a matter of process. But does it make any sense, and should it be applauded? We’d turn thumbs down on both of those counts.

On the first: Craig’s standing in the legal system is far less important than his standing in the political, and before the public, and the disconnect between the legal and the public/political is almost absolute. Remember how O.J. Simpson was declared not guilty of murder in criminal court, and then consider how many people in America think he probably didn’t do it. If Craig does succeed in pulling his guilty plea, and if he then managed to escape an eventual guilty verdict at trial (which likely would follow, in the category of “be careful what you ask for”) – how many Americans, how many Idahoans, would think of a sudden that what happened in that bathroom was just a misunderstanding? The headlines, the calls for resignation, the jokes – none of what has happened in the last four weeks would or could be retracted. That ship has sailed. The public, and the political world, has made up its mind about Larry Craig. And that’s a lot more significant than the picayune fine-plus-probation supposedly at stake.

On the second: Craig may be underestimating the anger he has generated by heading back to court, undercutting his own political standing and robbing himself of any opportunity for sympathy. One Idaho Republican we talked to last week cited this – his attempt to wriggle out of something he’d already admitted to – as her particular point of anger at Craig. She’s probably not alone. And anyone interested in issues of hypocrisy might seize on the distinction between Craig’s general law-and-order policy record and this frantic effort, using some of the highest-paid crisis management hired guns in the country, to find technicalities for absolution.

The Lewiston Tribune this weekend points out that last Wednesday, shortly after his return to Washington, Craig voted for denying court appearances to detainees at Guantanamo Bay. He voted – let’s put a point on this – to refuse even an appearance in court, in other words, to people who have been locked away thousands of miles from home for months and years despite being neither convicted nor even charged with any offense, at a time when Craig is demanding court hearings and action to throw out a guilty plea he willingly made after weeks of thought and consideration. We doubt much of the anger at Craig is being generated from any of this, but understandably some of it could be. A firing offense, though, or righteous cause for immediate dismissal? By itself, doubtful.

bullet Failing to level with . . . anybody. The Tribune‘s primary beef with Craig, and one that probably underlies some of the anger at him from his fellow Senate Republicans, is his silence on the arrest and conviction from the time the case began, until it was exposed in Roll Call.

That’s a justifiable complaint. Any public official who runs into trouble with the law – criminal or civil, whatever sort of offense it is – should immediately bring it public. Most professionals will tell you this is good PR crisis management practice anyway, since it;s a lot easier to shape the perception of an issue if one has control of the dissemination of facts from the beginning. (That was Craig’s best option, from the moment of his arrest, to escaping all this with a relative minimum of political damage.) It also is the right thing to do: If a public official is being seriously encumbered (as Craig was, in this case, by the criminal justice system) we all have a right to know about it. And there’s an ethical responsibility political people have to their political allies, to not toss them short-fuse bombs unaware.

It’s a fair criticism. A firing offense? Again, doubtful.

bullet Is he no smarter than this?, or, the poor judgment argument. It’s a Clinton/Lewinsky argument: If the guy is so stupid as to pull something like this, at any time but especially when he had to know he was being watched, how can he be trusted with important decisions . . . and how could he imagine an arrest or guilty plea like this would never get out? Should someone with such poor judgment be in the U.S. Senate?

What he did was stupid enough. But just as Bill Clinton, who also did a stupid thing, is not a stupid man, neither is Larry Craig – people who know him or have talked with him know better than that. We’ll assert it right here, from our observation of him over the years. (When will someone publish a book called “When Smart People Do Stupid Things”?) Most if not all senators probably have done stupid things of some kind over the course of their lives; most everyone has. Those who never have probably haven’t ventured very much. The big difference here is that Craig got caught, in a spectacular way. Doesn’t mean, in itself, that he is incapable of exercising judgment in the Senate.

bullet Ineffectiveness. Most of the newspaper editorials calling for Craig’s resignation from the Senate (especially those, like the Idaho Statesman, in Boise) focus on ineffectiveness – the argument that Craig inevitably will be swamped by the bathroom issue for the next year and odd months, and that he can’t do the job properly. He may be preoccupied by his case. Other senators won’t want to work with him. He has lost leadership roles on committees. And so on.

There’s something to this, certainly. Without doubt, Craig’s standing in the Senate has changed, has gone from a leading member of the Republican caucus to one only grudgingly allowed in the room at all. But the whole case isn’t that simple.

We’re not talking about five years left in the term – we’re talking about a little over a year. Craig retains a vote, in a closely divided Senate – valuable currency. He retains, for now, committee seats, also valuable currency. He retains Senate prerogatives such as the hold. And what he lost in personal standing with other senators he may have picked up in another way: National celebrity. That’s been a negative trade so far, of course. But suppose that after this week he closes out his legal case, and decides that he’s going to focus on the Senate and on issues of concern to him (maybe some new ones). He could generate more headlines for them than he could possibly have done before.

And he’s already been back to Washington, already looked into those angry faces: In some ways, the worst is over. Watching a movie channel a couple of nights back we were reminded of a quote from Alfred Hitchcock to the effect that terror comes not from the firing of a gun, but from the suspense of waiting for it to go off. For Craig, the gun already has been fired. The rest is aftermath; the horror already has been unleashed; he’s in the anticlimax. Now that the crisis is behind him, why leave?

He may, of course – probably will. But time is suggesting that the ineffectiveness argument isn’t enough, either, to ethically mandate a resignation.

bullet But what about all of these things taken together? Add it all up: The conviction, the hiding, the wriggling out, the foolishness, the hypocrisy, the loss of Senate status – take it together, and is this enough to say, “Larry, you gotta go”?

Maybe. This is a deep gray area, because while we’d argue that no one of these is enough by itself, there’s a fair case for saying that in all, they do. It teeters on the edge.

We also think this: That none of these things, or even all of them taken together, account for the reaction the Craig case has generated – the immediate calls for resignation, the ferocious dismissal from allies of decades’ standing, the endless and mind-wrenching jokes, the mass attention and the fury. Especially the fury.

The only accounter we can conceive of for that, for the emotional response, is that what we’re talking about here, the subject matter – the res, as lawyers would say – is gay sex.

That’s what no one seems to want to admit, and what gets regularly denied: “It’s not that he’s gay, I don’t care about that, that doesn’t matter”. So they say. So almost everyone says. But think about this: Suppose Craig were caught in a misdemeanor offense, pleaded guilty, was found out weeks later – but the offense was something else? What would have been the public reaction then? Would there be calls for his resignation? Would he be a fixture on late-night talk shows, would people in Japan and South Africa know who Larry Craig was? Is that, at base, why so many people want Craig gone, immediately, now?

Questions for wider pondering, in front of the mirror.

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One Comment

  1. These are all very good points, and you’re quite right, if it weren’t gay, there wouldn’t be the stink. I’m personally quite happy to have Larry Craig stay in the Senate, I’d be more than happy to have the Republican hypocrisy on display for as long as possible. No, I don’t think this is a firing offense, but then hypocrisy hasn’t been for an awfully long time.

    Maybe it should be, but this isn’t the bunch to start it off. You nicely walk a very narrow non-partisan line, I don’t get anywhere near it. Even so, I do agree with you, maybe with another agenda as collateral damage.

    September 24, 2007

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