Another Defense for Sen. Larry Craig?

I've opined several times that Sen. Larry Craig's plea might be withdrawn because the mail-in plea agreement he signed failed to advise him of his right to counsel. Attorney Beldar points out that Minnesota has a form for defendants who want to plead guilty pro se. Beldar notes, however, there's been no reporting that Craig submitted such a form. Maybe a reporter or lawyer in MN could check the file?

Meanwhile, World Net Daily comes up with another defense for Sen. Craig: Article 1: Section 6 of the U.S. Constitution provides that no member of Congress can be arrested while traveling to or from official session. Craig voted on a bill in Washington at 5:55 pm, which raises the clear inference he was traveling from MN to D.C. to vote.


Article I, Section 6 says:

"The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."

So, assuming Craig's arrest was unlawful, does that mean MN can't issue him a summons or complaint? Or does it just mean, as with most illegal arrests, that anything the person says and any evidence obtained as a result of the arrest must be suppressed?

I would think that MN can still charge Craig -- they just can't use anything he said against him at trial. Immunity from arrest doesn't mean immunity from prosecution.

Considering Craig's post-arrest statement was a denial of the charges, "You saw something that didn't happen," I'm not sure his lawyers would want the statement suppressed. It shows a spontaneous denial of guilt.

Still, it's an intriguing theory. But, in my opinion, provided Craig didn't submit a Form 11, it's not as good as a ground to withdraw his plea as the failure of his plea form to advise him of his right to counsel.

As for then what, obviously Craig doesn't want a trial. As I wrote here (and added to here and here), his best bet is to get the plea withdrawn and then bargain with the prosecutor for a deferred prosecution or pre-trial diversion (not a deferred judgment) which doesn't involve an admission of guilt. No plea, no guilty verdict, no criminal record. The presumption of innocence is maintained.

We may just have to sit back and wait and see how much mojo Billy Martin has with the prosecutor's office.

Update: T-Rex at Firedoglake just pointed out to me the Article I, Section 6 defense was tried and rejected by a Georgia lawmaker in 2005. Although that case didn't involve the lawmaker en route to a vote, I think the principle that immunity from arrest doesn't mean immunity from prosecution will still hold.

Also check out TRex's two posts tonight on Craig.

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    Good point (5.00 / 1) (#2)
    by Jeralyn on Wed Sep 05, 2007 at 01:42:43 AM EST
    You get what you pay for. I wouldn't rely on any of our opinions. We're punditing not advising. Plus, as is stated clearly on Talkleft:

    Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

    Let him stay (5.00 / 1) (#13)
    by Deconstructionist on Wed Sep 05, 2007 at 07:59:01 AM EST
      The entertainment value is high. Moreover,  should he defy almost everyone and stay it would seem to make it more likely a Dem can get the seat in 2008. Someone appointed now would gain an advantage in fundraising, name recognition and the chance to bring home a little  bacon to Idaho and to do the other "official" ceremonial activities of an incumbent. Plus, it would put over a year between this embarassment and the election.

      Keeping this episode alive as long as possible has little downside.

    Yes!!!!!!!!!!! (none / 0) (#40)
    by glanton on Wed Sep 05, 2007 at 11:03:13 PM EST
    many problems with this story... (5.00 / 1) (#17)
    by lawstudent on Wed Sep 05, 2007 at 08:52:05 AM EST
    i'm not one to say that craig is a terrible person for what he did (if he did it), but this story has many troubling aspects for me...

    1 - it is sad that we live in a society where a gay man feels he needs to resort to bathroom foot-games to "get his fix."

    2 - it is equally sad that when craig's arrest became public, he seemed more concerned with pleading "not gay" than "not guilty" in his public statement.

    3 - as important as the right to counsel may be, it seems craig passed on the opportunity in order to keep this matter as quiet as possible...he wanted this to go away as fast as possible and not be tied up in the legal system.  his choice, based on his fear of the public learning of his sexuality, is now being used to his advantage in an attempt to have the plea vacated.  

    Senator Craig is fortunate (none / 0) (#1)
    by oculus on Wed Sep 05, 2007 at 01:33:40 AM EST
    so many lawyers are offering free legal advice.

    I wondered about that... (none / 0) (#3)
    by jr on Wed Sep 05, 2007 at 01:43:16 AM EST
    ...but I think invoking it under these circumstances would be a sure-fire way to get oneself expelled from the Senate by the other members.

    (Sigh, I just used the phrase "other members" in a comment about Craig.  I guess I'm just a bad boy, a naughty boy, even a nasty boy.)

    Another defense: inadequate recital of facts (none / 0) (#4)
    by Beldar on Wed Sep 05, 2007 at 01:52:33 AM EST
    One more potential defense, this one suggested originally by federal prosecutor WLS, guest-blogging at Patterico's: The motion to enter a guilty plea doesn't include "offensive" as part of the recitals for the basis in fact for the plea.  It tracks other language from the disorderly conduct statute, but leaves that out. I argued  in response that that didn't matter, because the motion cross-references and (at least arguably) incorporates by reference the complaint, which includes facts from which the court could have come to an independent conclusion that there was sufficient "offensive" conduct (e.g., insinuating a hand and a foot into the officer's stall space, plus two minutes of staring) to satisfy the "basis in fact" requirement for taking a plea. But if Craig's throwing in the kitchen sink, it's another point — probably not one to lead off with, but another bit of sloppiness by the prosecution, and probably therefore worth including.

    You're sending Billy Martin a bill for all this high-powered consulting we're offering him, right? :-)

    The Georgia Case was not Art 1, Sec 6... (none / 0) (#5)
    by jr on Wed Sep 05, 2007 at 01:54:21 AM EST
    ...but was apparently based on a state constitutional immunity similar in nature to Article 1, section 6, according to the link.

    (And do you know if disorderly or lewd conduct would be construed as a "Breach of the Peace," which would potentially nullify Art 1 protection?)

    It Depends (none / 0) (#8)
    by Saul on Wed Sep 05, 2007 at 06:15:38 AM EST
    on what the definition of "Breech of Peace" is.  Minnesota law might define what Breech of Peace is in Craig's case and this would destroy his Article 1 Section 6 defense.

    I think that PRIVILEGE would be waived (none / 0) (#9)
    by Deconstructionist on Wed Sep 05, 2007 at 06:58:56 AM EST
      by failing to raise it prior to entering the guilty plea. A privilege may be waived by the person possessing it. Generally any pre-trial defects in a prosecution are waived by the act of pleading guilty.

       Also that one is privileged from arrest would likely be limited to the court being unable to hold a person in custody or require posting of bail pending trial and not prevent prosecution scheduled so as to not interfere with legislative duties. The purpose of the clause was to prevent chicanery and political opponents from obstructing congressmen from their legislative duties.

      Perhaps, indirectly, the existence of the privilege might give some slight added weight to the argument the plea was not knowing, intelligent and voluntary.


    Craig should step down (none / 0) (#11)
    by Saul on Wed Sep 05, 2007 at 07:50:52 AM EST
    even if he had this Constitutional defense.  Any elected senator that makes such terrible decisions on defending himself or has terrible judgements qualites in his personal life should not be the people's choice for a senator.  If this is how he works in his private life then what kind of dedicisons is he making as a Senator for the people of Idaho. On another note David Vitter was not forced to resign becasue the Governor of Louisiana is a democrat and thats the main reason the republicans did not force him out. The governor would have appointed a democrat to replace him.  

    Broader Issues on this: (none / 0) (#14)
    by A DC Wonk on Wed Sep 05, 2007 at 08:00:23 AM EST
    1.  The whole thing stinks.  As many other left-wing bloggers have written: don't Minnesota police have something better to do than trolling bathrooms in the hope somebody will make a pass at them?  Like, perhaps, fighting/preventing crime that actually has a victim?

    2.  I'm not entirely comfortable that expressing a desire to get intimate with someone is a crime.  What if a defendant said, "yeah, I wanted to have sex with him, but I wasn't planning on doing it in a public place, I was going to ask him to get a motel room with me?"  Or, even, "yeah, I was thinking about sex, since when is that a crime?"

    3.  Even more interesting is the whole potential double-standard hypocrisy from GOPs regarding Vitter vs Craig.  Those on the left claim the GOP is being hypocritical for only condemning Craig, and it must be because of their views on homosexuality.  The GOP's talking point defense is that Craig pleaded guilty, and Vitter didn't.  So,  if Craig can void his guilty plea, the GOP's defense goes out the window.  Will they suddenly embrace Craig again?  If not, isn't that more proof of a double standard?

    Democratic Governor (none / 0) (#18)
    by Saul on Wed Sep 05, 2007 at 08:55:48 AM EST
    of Louisian on the Vitter case is the main reason for the double standard.  The repbulicans probably wanted Vitter out but were more concern about the democratic replacement by the governor.  More importantly you got to remember is that the republicans are not crying for the ouster of these guys because they did something immoral, rather the repbulicans want them out strictly on the basis that many are up for relection in 08 and don't want to be whipped again as they were in 06 midterm elections with Foley fiasco.  They do it all for the wrong reasons.

    Not victimless (none / 0) (#21)
    by eric on Wed Sep 05, 2007 at 09:30:56 AM EST
    The whole thing stinks.  As many other left-wing bloggers have written: don't Minnesota police have something better to do than trolling bathrooms in the hope somebody will make a pass at them?  Like, perhaps, fighting/preventing crime that actually has a victim?

    The victim here is anyone who is deprived of a bathroom that is free from anonymous tearoom sex.  It has been established that this bathroom was a problem and that there had been complaints.  Obviously, men and boys using this bathroom were seeing things that were bad enough to tell the police.  Furthermore, information from gay cruising message boards shows that this bathroom was a "hot spot" for the cruising scene.  I won't link to them, but the Minnesota Monitor did look and quotes from a message board:

    "The site, Squirt.org, lists how to get there: "Across from Food Court. Go through security to main Mezzanine where main shopping is located. Look for Starbucks Coffee stand and Men's Room is across from there," what to expect:
    "Very cruisy, no security cameras or guards. Most of the time, men will show themselves to you at the urinals and invite into stalls or nearby hotels. Plenty of dark stall action, too!Update: No one is permitted beyond the security checkpoints without an airline ticket now," and some of the biggest pet peeves: "Stall hoggers! Get off and get out! Cleaning crews may be overly curious, but won't interfere."


    Now, we could debate about what method might best deal with this problem, but it is clearly a problem.  Maybe posting a uniform in the bathroom would have been more pallatable for some.  But to say that conduct like this is victimless doesn't seem right.

    And if you are meaning to imply that MSP is some sort of strange place because the cops are arresting men for cruising in bathrooms, here is a report from ATL, the busiest airport in the US.  Looks like they have a problem, too.


    I agree (none / 0) (#24)
    by Maryb2004 on Wed Sep 05, 2007 at 09:58:17 AM EST
    Perhaps a police sting operation wasn't the solution but I don't get the denial that there was a problem. imo the airport was well within the bounds of reasonableness to try to solve the problem and return that restroom facility to a situation where people used it ONLY for its intended purposes.

    Stall hoggers .. LOL.  I can see the anger of people who just gotta go.


    Point taken, (none / 0) (#27)
    by A DC Wonk on Wed Sep 05, 2007 at 10:22:28 AM EST

    Nevertheless, I still (so far <g>) stand by my other points: (a) low-level flirting shouldn't be a crime; and (b) I look foward to GOP's explanations of why they want to get rid of Craig and not Vitter if Craig successfully withdraws his guilty plea


    Yep (none / 0) (#28)
    by eric on Wed Sep 05, 2007 at 10:31:54 AM EST
    I agree with you on those points.

    Not victimless. Note the presence of (none / 0) (#30)
    by oculus on Wed Sep 05, 2007 at 12:13:47 PM EST
    the Craigs' teenage daughter at the press conference.

    hogwash (none / 0) (#34)
    by cpinva on Wed Sep 05, 2007 at 05:10:03 PM EST
    if the police concern were truly only in curbing untoward activities in the bathrooms, stationing a uniformed officer inside would have done the trick (sorry!), and cost a lot less. in school, they put a teacher in the bathroom, to stop unwanted activities from happening. it worked just fine.

    this leads me to conclude that the airport police concern had little, if anything to do with stopping these activities, and more the opportunity for some of their young guns to (sort of) be serpico for the day.

    that's putting the best light on it.

    nice try though eric. unfortunately, this whole explanation for the police sting holds water about as well as a seive.


    Hogwash? (none / 0) (#36)
    by eric on Wed Sep 05, 2007 at 07:19:05 PM EST
    What?  I conceded that there may be arguments about how best to deal with this problem - maybe posting a uniformed officer would be better.

    But how is it exactly that my "explanation" of the sting doesn't hold water?  I don't think that I even explained that at all.  Did I?

    I addressed the questions of whether there was a problem and whether there were victims.  I think my post supported my conclusions.

    So why the slam?


    what's hogwash is your (none / 0) (#37)
    by cpinva on Wed Sep 05, 2007 at 10:03:34 PM EST
    assertion, absent any actual tangible evidence, that people are being "victimized" in public restrooms, by having their unfettered use of them denied, as a consequence of public gay sexual encounters in them. you refer to this as "anonymous tearoom sex".

    of course, no one's claimed that public sex in restrooms is ok. of course, that's not what happened here at all; you've conveniently conflated the two.

    more to the point, there seems scant actual, tangible evidence of any actual public sex occurring in these restrooms, merely anecdotal claims.

    frankly, i've been in that restroom. if there's public sex going on in it, i never saw or heard it. if i was hit on, i was totally oblivious to it, as probably most straight men would be.


    Well then (none / 0) (#39)
    by eric on Wed Sep 05, 2007 at 10:12:31 PM EST
    Well then I guess that the posts on Squirt were wrong and that the cops were there for no reason.  And the police were somehow making it up when then went there to address the "nonexistent" problem.  Seriously.

    We can disagree about how the police address the problem, but lets not deny that a tearoom in an airport bathroom that has elicited compaints isn't a problem.  It is.


    Problem is a stretch.... (none / 0) (#41)
    by kdog on Thu Sep 06, 2007 at 08:41:20 AM EST
    I think it's better described as a nuisance.

    Stings (none / 0) (#42)
    by Peaches on Thu Sep 06, 2007 at 09:16:40 AM EST
    The effectiveness of stings is not measured only by whether the behavior is reduced in the one particular bathroom. Placing a uniform officer in the bathroom would have done that trick, but only as long as the officer is present.

    Stings place fear into those practicing this behavior and not only in the one bathroom, but all bathrooms and at all times.

    (I am not endorsing stings to limit homosexual activity in public restrooms, but only explaining the efficacy of them)


    Good point (none / 0) (#43)
    by eric on Thu Sep 06, 2007 at 03:31:41 PM EST

    withdraw his plea at his own peril (none / 0) (#19)
    by eric on Wed Sep 05, 2007 at 09:10:03 AM EST
    his best bet is to get the plea withdrawn and then bargain with the prosecutor for a deferred prosecution or pre-trial diversion

    If he gets his plea withdrawn, I very much doubt the prosecutor is going to be willing to give him anything.

    I agree it's a tough sell (none / 0) (#26)
    by Jeralyn on Wed Sep 05, 2007 at 10:07:08 AM EST
    but I didn't say it was likely, only that it would be the best case scenario for him.

    Legal Question (none / 0) (#20)
    by jimakaPPJ on Wed Sep 05, 2007 at 09:24:47 AM EST
    I think the principle that immunity from arrest doesn't mean immunity from prosecution will still hold.

    Correct me if I'm wrong.

    If a Congressperson was DUI driving from his home to vote, does this mean that he couldn't be arrested?

    And if he could not, could he be arrested later based on the police's "observed" evidence? Weaving across traffic lanes, smell of booze when stopped, etc...

    article 1, section 6 (none / 0) (#23)
    by lawstudent on Wed Sep 05, 2007 at 09:41:42 AM EST
    i know i've read a few online analyses of why the art. 1, sec. 6 of the constitution can't save craig in this situation, but i can't remember where.  i managed to find one blog discussing why this won't work, and i think it answers your question, jimakaPPJ:



    Thanks (none / 0) (#35)
    by jimakaPPJ on Wed Sep 05, 2007 at 06:19:38 PM EST
    an interesting analysis (none / 0) (#38)
    by cpinva on Wed Sep 05, 2007 at 10:09:26 PM EST
    so, we can expect to see members of congress being arrested right and left now, in order to keep them from voting on legislation someone doesn't want passed?

    Thread cleaned (none / 0) (#22)
    by Jeralyn on Wed Sep 05, 2007 at 09:38:29 AM EST
    There were a bunch of ugly, off topic comments on this thread this mornng. I deleted them and banned some of the posters.

    I think Craig would have had an excellent case at trial if he had never pled guilty.  I don't see any commission of a crime.  By the police officer's own report, he responded to Craig's signals to indicate that he was interested--tapping his foot in response to Craig's foot tapping, moving his foot towards Craig's.  As such, I don't see how they can make a case that he was interfering with privacy or doing anything lewd.  Essentially, Craig was arrested for flirting with a man who indicated that he was interested in having sex with him.  Now, if Craig had proceeded to attempt to have sex in the bathroom, or to go into the stall or have the cop come into his stall with him, then that would be evidence that he actually intended to have sex in a public place.  But, while some of these encounters do result in sex in the bathroom, many of them do not--they go somewhere more private to actually have sex.  Far from interfering with the officer's privacy, Craig was, in fact, respecting it.  The foot tapping, etc. is specifically intended to make sure that the person you are signalling is interested, rather than you just suddenly thrusting your hand under the bathroom stall haphazardly.

    I think his chance of withdrawing his guilty plea is probably about nil, though.  And, of course, there is the whole reason he pled guilty in the first place.  He wanted all the details kept quiet.  To withdraw the plea, and actually go through a trial now would be a huge public spectacle.  

    I disagree with Jeralyn about the likelihood of him entering into some sort of deferred prosecution or adjudication agreement, too.  That may legally mean there is no conviction, but it is inferred by many to be an admission of guilt.  It hardly is "fighting like hell" to enter into a deferred.  Again, it makes all sorts of legal sense for accused defendants to do it.  But this is much more about politics than it is about his criminal record.

    yes, but (none / 0) (#29)
    by eric on Wed Sep 05, 2007 at 10:42:53 AM EST
    I agree that he probably didn't actually commit a crime, but I think that these stings have a bit of a twist to them.

    I would wager that most of the guys who get caught doing what Craig did are simply so embarrassed that they don't want to fight.  They probably can work out a deal even better than Craig got - a continuance for dismissal. (a sort of deferred prosecution).  Here, we call them a CWOP (Continued WithOut Prosecution).  Essentially, there is no admission and the charge disappears if you behave for a year.  The prosecutor, having no real case for an actual crime, surely hands these out pretty easily.

    However, if you won't take this deal, then you can go to trial.  Then, you get to have all the details about this bathroom and what signals mean what, etc. brought out.  Then, maybe you are acquitted because signals aren't illegal.  But all of your bathroom behavior is out there.

    And in the case of Craig, you have that gross misdemeanor of peeping still being pursued.  That caries up to 1 year in jail.


    If the plea is overturned (none / 0) (#31)
    by pontificator on Wed Sep 05, 2007 at 01:37:59 PM EST
    on the basis of a faulty form, does that mean every criminal defendant in Ohio who plead guilty using that form can also have their plea overturned?

    If they pleaded without counsel (none / 0) (#33)
    by Jeralyn on Wed Sep 05, 2007 at 04:07:15 PM EST
    Yes.  But don't forget, that's a plea agreement created by the prosecutor for this case. It's not the court's form. And it may not be the prosecutor's standard form.

    But, if the prosecutor routinely uses this form and just adjusts the charges and factual basis for the particular defendant, I'd say yes, there are others who might apply for relief if they signed without counsel.


    What about freedom of speech as a defense? (none / 0) (#32)
    by 1980Ford on Wed Sep 05, 2007 at 03:43:24 PM EST
    Is foot tapping speech? Is dancing?

    To those who say there were complaints, once again, that could be just blind faith in the police. For all we know, they find the cruising sites the same way some posters find them here - from the Internet.

    "None. They couldn't produce a single complaint," she said. Flynn claims that the police are deliberately targeting men who have sex with men.