Paul Kiel puts it all in perspective:

Jack Abramoff is in prison. Ex-Rep. Duke Cunningham (R-CA) is in prison. Ex-Rep. Bob Ney (R-OH) is in prison. Ex-Reps. Mark Foley (R-FL), Katherine Harris (R-FL), Tom DeLay (R-TX), Curt Weldon (R-PA), and Ex-Sen. Conrad Burns (R-MT), all either lost or did not seek reelection. Gone, away, to be forgotten. This year was supposed to be different for the Republicans. But…

As The New York Times notes this morning, scandal has pursued them into 2007. “The real question for Republicans in Washington is how low can you go, because we are approaching a level of ridiculousness,” says one Republican strategist.

So what’s the tally this year so far? Well, there is, of course, 1) Sen. Larry Craig (R-ID) and 2) Sen. David Vitter (R-LA) with their sex scandals (the attempted restroom tryst and numerous successful hotel room trysts, respectively).

But then there’s the much greater toll of just plain ol’ corruption. 3) Sen. Ted Stevens (R-AK) and 4) Rep. Don Young (R-AK) are under investigation for their ties to the oil company Veco (though that’s just the tip of the iceberg for Young). 5) Reps. Tom Feeney (R-FL) and 6) John Doolittle (R-CA) have found themselves the focus of a reinvigorated Abramoff investigation (though Abramoff is in prison, he’s still busily cooperating). 7) Rep. Rick Renzi (R-AZ) had his house raided. 8 ) The FBI is investigating Rep. Gary Miller’s (R-CA) land deals.

And then there’s 9) Sen. Lisa Murkowski (R-AK) whose land deal with a businessman and campaign contributor became such a scandal that she finally just sold back the plot of land….

And there are a couple holdovers from 2006, of course; scandal figures who’ve stuck around and managed to keep a relatively low profile. 10) Rep. Jerry Lewis (R-CA) is still apparently under federal investigation. And 11) Rep. Ken Calvert’s (R-CA) land deals are still winning scrutiny.

That’s one troubled political party.

(Photo: Larry Craig’s mugshots, via The Smoking Gun.)

Having looked into it, I think I misunderstood the peeping statute I cited the other day. Apparently, peeping statutes often (though I can’t speak to the specifics in Minnesota) require some evidence of sexual intent to distinguish a “peep” from a “glance.” Someone looking into a bathroom stall to see if there’s anyone in there is not peeping; someone looking into a bathroom stall who then proceeds to send sexual signals to the person in the stall may well have been peeping.

And because, as I noted, there’s no crime in asking for sex (First Amendment rights and everything), when the state wants to discourage sex in public bathrooms (actions which lead to public complaints, and which the state has a legitimate interest in preventing), it often relies on ancillary and not particularly specific legal statutes to do the job. Given that the solicitation for sodomy statutes were struck down, peeping and disorderly conducts ones are frequently pressed instead. The charges may not address the actual behavior the state is seeking to prevent (consensual lewd conduct in bathrooms in the wake of prefatory peeps), but they do the job, and they are often all that is available to police.

And with that, I return to regular, non-restroom blogging.

The one thing most people across the blogs seem to agree on is that if Sen. Larry Craig had engaged in lewd activity in the restroom stall, whether solo or in concert with another individual, he should certainly have been subject to arrest. That may well be the case — I’d love it if some lawyers could weigh in here — but there is one reasonably well-know ruling to the contrary, and it involves the state Craig represents (Idaho).

In 1990, the Idaho Court of Appeals, in State v. Limberhand, ruled that (solo) masturbation within an enclosed restroom stall was constitutionally protected behavior as the individual within the stall had a reasonable expectation of privacy within the stall. As summarized in another case:

In State v. Limberhand, 117 Idaho 456, 788 P.2d 857 (Ct. App. 1990), the defendant was arrested for obscene conduct after an officer observed him, through a four-inch hole in a stall partition, masturbating in a public restroom. This Court determined that Limberhand had a legitimate expectation of privacy in the restroom stall notwithstanding the existence of the hole.

Go figure.

(Note: This precedent would tend to lend a bit more credence to the interference with privacy charge against Craig the Minnesota court dismissed.)

A lot of people are asking, “Is solicitation a crime?” That is: Was there anything criminal about Sen. Larry Craig‘s gestures if they suggested a desire for consensual lewd behavior of some kind with the man in the adjacent restroom stall?

The answer, as far as I can discern, is a clear no. (See University of Minnesota Law Professor and Independent Gay Forum contributor Dale Carpenter for more. And also, surprisingly, Captain’s Quarters.) It is not a misdemeanor in Minnesota to ask a person to have sex with you, whether by gesture or voice, and even if the person finds the request unwanted. Think about it: If it were, the women of that state would have a field day with creeps at bars and cat-callers on the street.

Solicitation of children to engage in sexual conduct is a crime (as it should be), as is solicitation of prostitution. But, again, I can find nothing in Minnesota state law that makes asking someone to hook up with you a crime, rather than a civil tort (as in sexual harassment law) regardless of the circumstances.

Why, then, do police continue to act as though it is? Because of the long and only-recently ended practice of firm legal discrimination against gay people. Until 2001, consensual sodomy was a crime in Minnesota, meaning that it was only six years ago that gay people in that state stopped being treated by the letter of the law as, quite literally, outlaws and criminals.

Meanwhile, in Idaho, the state Sen. Larry Craig has represented in Congress since 1981, consensual sodomy was a felony punishable as a “crime against nature” by five years to life in prison until 2003, when the Supreme Court ruled in Lawrence v. Texas that a similar statute in Texas was unconstitutional, thus striking down the state’s law. From 1996 until then, the state sex offender registry was written so as to add those convincted of even consensual sodomy to the sex offender rolls for life.

Until the sodomy laws were struck down by the Supreme Court, solicitation of sodomy was a crime in many of the states that had sodomy laws, and it was this “solicitation for sodomy” provision that allowed men who sought sex from other men to be targeted for arrest by police in, for example, public restrooms, under circumstances where there was no money or coercion involved. (More on which in a minute.)

Marc Ambinder fairly asks:

Who gave Roll Call the story? Surely the publication does not randomly make beat calls to Hennepin Co. court clerks…. why did the story come out on a Monday?

Here’s one hypothesis: a little bird who was in Indianapolis, Indiana, over the weekend got wind of the story while at the Republican Midwest Leadership Forum (which brought together “hundreds of activists from 12 Midwestern states” and featured some prominent Minnesota G.O.P. elected officials) and dropped a dime to Roll Call, which then ran with the story the next day it published and as soon as it could obtain the police report from official sources.

This sounds like exactly the sort of story that one person gossips about at a hotel bar and another decides is worth taking to the press.

Another hypothesis: the Roll Call reporter, John McArdle, simply has excellent law enforcement sources. He’s done a number of stories on the Capitol Police over the summer; perhaps one of them got word of the Larry Craig arrest through law enforcement channels. One can imagine, after the whole Mark Foley scandal, that a Minnesota police officer or court clerk might have felt some obligation to let Capitol Police officers know that one of the men who works in the Capitol building had been arrested, and on what grounds.

Regardless of the origins of the story, I’d be curious to know if Minnesota Gov. Tim Pawlenty was ever informed of the arrest of Sen. Craig in his state. Who in the Minnesota delegation knew about this (if anyone)? I mean, how does a story like this not get back to a state’s governor through law enforcement channels?

The original charge in the case seem to have been rightly thrown out by the court. According to Minnesota law, “gross interference with privacy” is basically a peeping Tom statute, and there wasn’t much of an allegation that Sen. Larry Craig was improperly peeping into the stall next to his.

(c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping
room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place
where a reasonable person would have an expectation of privacy and has exposed or is likely to
expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering
the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.
(d) A person is guilty of a gross misdemeanor who:
(1) surreptitiously installs or uses any device for observing, photographing, recording,
amplifying, or broadcasting sounds or events through the window or other aperture of a sleeping
room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place
where a reasonable person would have an expectation of privacy and has exposed or is likely to
expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering
the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

The arresting officer should have known this. A disorderly conduct charge under such circumstances sounds like the kind of thing an officer would roll out to make up for the fact that the original charge had no merit but the officer had already made an arrest, and the arrestee objected to being so targeted. You can usually get anybody to plead guilty or nolo contendere to a disorderly conduct charge because it is so very minor a misdemeanor.

UPDATE: Welcome, Hugh Hewitt readers. Long-time reader, first-time smacked down by Mr. H.H. Since I didn’t include the link above, I should note that what I wrote about the disposition of the charge was based on the A.P.’s report that “a Hennepin County court docket showed Craig pleading guilty to the disorderly conduct charge Aug. 8, with the court dismissing a charge of gross misdemeanor interference to privacy.” For more, see Dale Carpenter over at The Volokh Conspiracy.