As discussed in prior entries, Senator Larry Craig is arguing that his guilty plea is invalid because the underlying conduct cannot be a crime. While the odds are against him, the argument has merit.

Craig is contesting his plea of guilty to charges of disorderly conduct after his arrest in a bathroom sex sting. Craig was arrested in the Minneapolis airport Craig on June 11th by an undercover officer, Sgt. Dave Karsnia, who said Craig tapped his feet and swiped his hand under a stall divider in a way that signaled he wanted sex.

The public disclosure of the case led to Craig’s much ridiculed claim of “having a wide stance” in the bathroom and a denial of signaling. In the appeal, he will have a hard time contesting such factual assertions for two reasons. First, factual determinations on the trial level are given great deference on appeal. Second, he pleaded guilty to the charge. As noted in prior entries, his best bet was always to challenge the law itself. Adults have a constitutional right to “signal” or “proposition” each other so long as they do not engage in criminal or sexual conduct.

For a prior column on the case, click here

Craig is first arguing the multiple victim rule that generally confines disorderly conduct to a showing that the defendant’s conduct affected multiple individuals. Here, it affects (at most) the officer who invited the conduct. Thus, he argues “Appellant’s alleged conduct in this case affected only a single individual – Sergeant Karsnia . . . It did not – and could not affect ‘others’ as the disorderly conduct statute requires, and therefore, does not satisfy that element of the statute.”

They also make the argument that this is protected speech, a remarkable argument to make for Craig who was viewed (before he became a criminal defendant) unsympathetic to such civil liberties claims.

There is little room for sympathy of Craig, but it cannot blind us to the fact that the charges in this case were radically overblown and probably would not have even made to a trial. What Craig was guilty of in that bathroom was raw hypocrisy and depravity. Soliciting sex in bathrooms from strangers is appalling to most homosexuals and heterosexuals. However, it is not, in my view, a criminal offense. The use of signals would appear to further undermine the notion of disorderly conduct. The whole point of signals is to be discrete and understood by only those who are familiar with the signals. Most men had not inkling that such signals existed until this arrest.

Courts, however, do not like efforts to undo pleas. Adults are expected to make adult decisions. Craig’s entire explanation for his sudden desire to overturn the plea is little more than a recognition that he acted as a complete moron in accepting the deal and not speaking with counsel. Courts tend to refuse to rescue people from self-inflicted harm. Nevertheless, there is a viable constitutional claim here and we should move beyond the man making the motion and seriously consider the merits.

For the latest story, click here