Bryan Fischer
Larry Craig's best friend: the U.S. Constitution
By Bryan Fischer
As word comes of Sen. Larry Craig's reconsideration of his announced resignation from the U.S. Senate, it turns out that his best ally in getting rid of his guilty plea for his conduct in a Minneapolis airport restroom may be the United States Constitution.
If the senator had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator's arrest and guilty plea will have to be vacated.
This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that "Senators and Representatives... shall... be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." (emphasis mine) The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.
Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.
If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.
This of course does not change the facts of the matter, or confer innocence on the senator. His guilty plea remains inexplicable if the senator had, as he insists, done nothing more than pick a piece of paper up off a bathroom floor. If that's all he did, why would he plead guilty to anything? How does cleaning the floor of a public restroom constitute disorderly conduct, and why on earth would anyone plead guilty to such a charge if his actions were perfectly innocent? People might plead guilty to a lesser charge to avoid a more serious charge, but people just do not plead guilty in order to conceal innocent behavior.
Most observers have overlooked one of the senator's first statements to the arresting officer, "You solicited me." That is an admission on the senator's part that some kind of exchange of signals occurred between him and the officer. Further, if he was not familiar with the protocol used to arrange sexual liaisons, how did he know he was being solicited in the first place? Most of us had no idea of the process homosexuals use to arrange restroom trysts until we read about them in articles about the senator's arrest.
What is also striking by its absence from the interview with the officer is any sense of outrage on the senator's part that he had been falsely accused of soliciting anonymous gay sex, an accusation that would likely damage his reputation beyond repair and bring his public service to an end. An innocent individual falsely accused of such a charge would vehemently deny his guilt from the first moment.
If the senator had in fact entered a not-guilty plea, and refused to plead guilty to any illegal conduct, I would still be his advocate. Had he done so, we would have the testimony of just one witness — the arresting officer — which is not enough to satisfy the Judeo-Christian tradition's rules of evidence, which include the principle that "by the mouth of two or three witnesses every fact is confirmed."
I would have been the first to say that we all must wait until we have more evidence, and until another witness steps forward. However, the senator, by his guilty plea, became that second witness. It is hard to find two witnesses whose testimony would be more compelling and convincing than the testimony of a law enforcement officer with an impeccable record and a sitting United States senator.
The senator by his own admission had frequently been in that particular restroom, a restroom which is advertised on gay websites as a prime location for anonymous encounters, and is so far out of the senator's way that he actually had to leave security to get to it, then pass through security checkpoints again to get to his next gate. It beggars belief that, in an airport with dozens of public facilities, he just happened to find himself in the one restroom in the entire airport noted for anonymous sexual encounters.
Further, the senator, as a frequent traveler, most likely had access to a VIP lounge for his use during layovers. His layover, according to press accounts, was from 11:30 a.m. to 1:00 p.m., in other words, over the lunch hour. Most observers will find it inexplicable that a traveler with access to free food and a comfortable and clean bathroom in an essentially private lounge would go out of his way to seek out a public bathroom.
It's virtually impossible for an objective observer not to conclude that the senator was in that bathroom cruising for gay sex, that such conduct is unbecoming for a U.S. senator who represents the state of Idaho, and that it is still appropriate for the senator to resign from public office.
Yet the senator apparently intends to fight ethics charges and seek to reverse his guilty plea. He has hired the same attorney who represented Michael Vick in his dog fighting scandal and the same press agent who spoke for Monica Lewinsky during her sex scandal with President Clinton.
And it turns out his best friend in the whole affair may be the chief legal document in American history.
Further note (added Sept. 7): Constitutional loophole not as big as appears?
As word came yesterday that Sen. Craig apparently now intends to resign as promised at the end of the month, I received more information touching on the U.S. Constitution's prohibition of the arrest of a Congressman on his way to or from a session of Congress. Under such a circumstance, congressmen are "privileged from arrest" except for "treason, felony and breach of the peace." This suggested the possibility that the senator may have been exempt from arrest in Minneapolis, since he was on his way to Washington, was officially charged with a misdemeanor, and did in fact cast a vote that very night.
Apparently, however, from a legal standpoint, "breach of the peace" is a fairly broad category, and includes behavior which meets the definition of "disorderly conduct."
An experienced local attorney drew my attention to Black's Law Dictionary, which is generally considered authoritative on legal definitions. Black's describes "breach of the peace" this way: "Breach of the peace is a generic term and includes all violations of public peace or order and acts tending to a disturbance thereof. One who commits a breach of the peace is guilty of disorderly conduct, but not all disorderly conduct is necessarily a 'breach of the peace.'"
That last phrase may leave the senator some wiggle room if he pursues this angle, but the door is apparently quite narrow. An online legal dictionary says that the category includes "any act which disturbs the public or even one person," all of which means that the senator's arrest on a charge of "disorderly conduct" then may have been consistent with the Constitution and permissible despite the senator's legislative status.
My thanks to those who provided additional information on this matter.
© Bryan Fischer
As word comes of Sen. Larry Craig's reconsideration of his announced resignation from the U.S. Senate, it turns out that his best ally in getting rid of his guilty plea for his conduct in a Minneapolis airport restroom may be the United States Constitution.
If the senator had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator's arrest and guilty plea will have to be vacated.
This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that "Senators and Representatives... shall... be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." (emphasis mine) The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.
Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.
If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.
This of course does not change the facts of the matter, or confer innocence on the senator. His guilty plea remains inexplicable if the senator had, as he insists, done nothing more than pick a piece of paper up off a bathroom floor. If that's all he did, why would he plead guilty to anything? How does cleaning the floor of a public restroom constitute disorderly conduct, and why on earth would anyone plead guilty to such a charge if his actions were perfectly innocent? People might plead guilty to a lesser charge to avoid a more serious charge, but people just do not plead guilty in order to conceal innocent behavior.
Most observers have overlooked one of the senator's first statements to the arresting officer, "You solicited me." That is an admission on the senator's part that some kind of exchange of signals occurred between him and the officer. Further, if he was not familiar with the protocol used to arrange sexual liaisons, how did he know he was being solicited in the first place? Most of us had no idea of the process homosexuals use to arrange restroom trysts until we read about them in articles about the senator's arrest.
What is also striking by its absence from the interview with the officer is any sense of outrage on the senator's part that he had been falsely accused of soliciting anonymous gay sex, an accusation that would likely damage his reputation beyond repair and bring his public service to an end. An innocent individual falsely accused of such a charge would vehemently deny his guilt from the first moment.
If the senator had in fact entered a not-guilty plea, and refused to plead guilty to any illegal conduct, I would still be his advocate. Had he done so, we would have the testimony of just one witness — the arresting officer — which is not enough to satisfy the Judeo-Christian tradition's rules of evidence, which include the principle that "by the mouth of two or three witnesses every fact is confirmed."
I would have been the first to say that we all must wait until we have more evidence, and until another witness steps forward. However, the senator, by his guilty plea, became that second witness. It is hard to find two witnesses whose testimony would be more compelling and convincing than the testimony of a law enforcement officer with an impeccable record and a sitting United States senator.
The senator by his own admission had frequently been in that particular restroom, a restroom which is advertised on gay websites as a prime location for anonymous encounters, and is so far out of the senator's way that he actually had to leave security to get to it, then pass through security checkpoints again to get to his next gate. It beggars belief that, in an airport with dozens of public facilities, he just happened to find himself in the one restroom in the entire airport noted for anonymous sexual encounters.
Further, the senator, as a frequent traveler, most likely had access to a VIP lounge for his use during layovers. His layover, according to press accounts, was from 11:30 a.m. to 1:00 p.m., in other words, over the lunch hour. Most observers will find it inexplicable that a traveler with access to free food and a comfortable and clean bathroom in an essentially private lounge would go out of his way to seek out a public bathroom.
It's virtually impossible for an objective observer not to conclude that the senator was in that bathroom cruising for gay sex, that such conduct is unbecoming for a U.S. senator who represents the state of Idaho, and that it is still appropriate for the senator to resign from public office.
Yet the senator apparently intends to fight ethics charges and seek to reverse his guilty plea. He has hired the same attorney who represented Michael Vick in his dog fighting scandal and the same press agent who spoke for Monica Lewinsky during her sex scandal with President Clinton.
And it turns out his best friend in the whole affair may be the chief legal document in American history.
Further note (added Sept. 7): Constitutional loophole not as big as appears?
As word came yesterday that Sen. Craig apparently now intends to resign as promised at the end of the month, I received more information touching on the U.S. Constitution's prohibition of the arrest of a Congressman on his way to or from a session of Congress. Under such a circumstance, congressmen are "privileged from arrest" except for "treason, felony and breach of the peace." This suggested the possibility that the senator may have been exempt from arrest in Minneapolis, since he was on his way to Washington, was officially charged with a misdemeanor, and did in fact cast a vote that very night.
Apparently, however, from a legal standpoint, "breach of the peace" is a fairly broad category, and includes behavior which meets the definition of "disorderly conduct."
An experienced local attorney drew my attention to Black's Law Dictionary, which is generally considered authoritative on legal definitions. Black's describes "breach of the peace" this way: "Breach of the peace is a generic term and includes all violations of public peace or order and acts tending to a disturbance thereof. One who commits a breach of the peace is guilty of disorderly conduct, but not all disorderly conduct is necessarily a 'breach of the peace.'"
That last phrase may leave the senator some wiggle room if he pursues this angle, but the door is apparently quite narrow. An online legal dictionary says that the category includes "any act which disturbs the public or even one person," all of which means that the senator's arrest on a charge of "disorderly conduct" then may have been consistent with the Constitution and permissible despite the senator's legislative status.
My thanks to those who provided additional information on this matter.
© Bryan Fischer
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)
