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August 29, 2007
Just What Crime Did Larry Craig Commit?
Dale Carpenter writing at the blog Volokh Conspiracy asks "What was Craig's Crime?"
Disorderly conduct is a notoriously nebulous crime, allowing police wide discretion in making arrests and charges for conduct or speech that is little more than bothersome to police or to others. And in an update to the post, an emailer familiar with Minnesota law argues that the Senator did not commit any crime in which he would be "guilty beyond a reasonable doubt:"
The "disorderly conduct" statute to which Craig pleaded guilty provides that one who knowingly “[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others” is guilty of the misdemeanor of disorderly conduct. Minn. Stat. § 609.72, subd. 1(3) (2004). 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.
Even if the completed act would be a crime, it's doubtful that merely asking for sex in the restroom would be a crime. Minnesota, unlike some jurisdictions, does not have a general solicitation statute. Mere solicitation of a crime is not a crime. State v. Lowrie, 54 N.W.2d 265, 266 (Minn. 1952); State v. Johnson, 2005 Minn. App. Unpub. LEXIS 352 at *9. Other bloggers are asking the same questions. And in a press conference yesterday at which Craig declared "I am not gay," the Senator stated that he was retaining the services of a lawyer to look into whether the verdict can be altered.
Minnesota does of course have an attempt statute, 609.17, but that requires a substantial step toward completion of the crime, plus the specific intent to commit the crime. I think it's possible but doubtful that Craig's acts would count as a substantial step, and it's also possible but doubtful that you could infer such a specific intent. Or rather — there's some inference there, but it's not strong enough to support guilt beyond a reasonable doubt.
None of this will negate the torrent of bad publicity associated with this story. For that reason, Craig will have a decision to make very soon about running for re-election in 2008. Will people forget about the incident by election day? Not if the Democrats can help it you can be sure. And given the uphill battle for the GOP to hold on to the Senate seats that are up for grabs next year, it would probably be best for all concerned if Craig declined to seek re-election.
He's damaged goods. It would be best for the party if he stepped aside and allowed another Republican to run in his stead.