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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, September 30, 2006

GOP House leadership and Mark Foley

(updated below)

The story of the apparent non-reaction of the GOP leadership upon learning of Mark Foley's predatory interactions with Congressional pages is obviously going to grow rapidly and will dominate the news for the next several days at least, although The New York Times seems to be the only ones who haven't realized that yet (they have only one buried article on the story which focuses on Foley rather than on the actions of the GOP leadership). For those seeking detailed information, Josh Marshall and John Aravosis, among others, are digging through every aspect of the story, including posts here, here, and here.

For now, I will just note what seems to be the bizarre and incoherent contradiction in the law, noted by Atrios yesterday, that in-person, actual sex between Foley and a 16-year-old page would be perfectly legal in D.C. and in most places in the U.S. (see UPDATE below), but it seems that it is a criminal act for Foley to discuss or solicit sexual acts with the same page over the Internet. Despite all the irritatingly righteous (and overheated) "pedophile" language being tossed around, in the overwhelming majority of states, and in Washington DC, the legal age of consent for sex is 16 years old. That means that actual, in-person sex between Foley and a 16-year-old page in D.C. would not be criminal at all (though it likely could have other legal implications).

But under the so-called "Adam Walsh Child Protection and Safety Act of 2006" (of which Foley was a co-sponsor), along with 18 U.S.C. 2251, discussion or solicitation of sexual acts between Foley and any "minor" under the age of 18 would appear to be a criminal offense (see Adam Walsh Act, Sec. 111(14) ("MINOR.--The term 'minor' means an individual who has not attained the age of 18 years") and 18 U.S.C. Sec. 2256 (1) (“'minor' means any person under the age of eighteen years").

But those are just the criminal aspects. It goes without saying that having a predatory Congressman sexually solicit teenage Congressional pages is a serious problem and the House leadership had a responsibility to act when they learned about it. And here, they clearly appear not to have taken action due to the political desire to protect Foley's seat.

The most significant fact I've heard thus far is that, as reported by Roll Call, the GOP Chairman of the House Page Board (as he admits) excluded the Democratic Congressman on the Board from deliberations over what to do about Foley, thus ensuring that only Republicans knew about this problem (and therefore enabled them to conceal it and do nothing about it). And the conflicting, still-shifting stories about who in the House Leadership knew what and when they knew it suggest some real wrongdoing and, at the very least, produces precisely the whiff of cover-up which ensures that more and more reporters will be digging around and the story will endure.

Whatever else one might think of the merits of all of this, there is little question that this is going to harm the GOP in a serious way, and the only question now is to what extent they can limit the damage. This scandal underscores numerous GOP weaknesses -- the complete disregard for any substantive concerns in favor of domestic political advantage, the oozing hypocrisy of their moralistic posturing, a bumbling ineptitude for most things they touch, and just a general ossified corruption that is typically produced by unchallenged power.

Any doubts as to the genuine political significance of this story ought to be resolved by this post from National Review's Kathryn Jean Lopez, where she quotes from the paragraph of the Post story regarding Boehner and Hastert's likely prior knowledge of Foley's conduct and then uses scare quotes to refer to them as the House "leadership." If someone like Lopez is already attacking House Republicans this way over this story, it is hard to see how Republicans will contain the damage here.

And again, whatever else one might think of the merits, it is hard to deny the sweet, sweet justice of Republicans being politically damaged by a lurid sex scandal in Washington. But unlike the one they obsessively fueled in order to impeach a President, this one seems, for better or worse, actually to involve serious sexual crimes against individuals whom the law defines as "minors," with the knowledge -- and one could argue the complicity -- of the GOP House leadership. If Democrats were granted the power to create any Republican scandal they wanted at any time, I doubt their imaginations would have allowed them to come up with something this politically potent.

UPDATE: It is true that in some states, age of consent is also determined by the age of the other party (for instance, it may be legal for someone under the age of, say, 24 to have sex with a 16-year-old, but illegal for someone over the age of 24 to do so (it then becomes statutory rape)). Either way, it is not "pedophila," but since a commenter suggested that D.C. has such a two-tiered age of consent law, I will check the statute and post as soon as I find it.

UPDATE II: I neither intended nor desired to get bogged down in the fine points of District of Columbia age of consent laws -- since the only real point was that sex with 16-year-olds is legal in many, I believe most, jurisdictions in the U.S., and should not be conflated with pedophilic sexual molestation of children. But I realize that I'm the one who brought it up, so:

Via Lexis, in D.C. Code § 22-3001 -- defining crimes of sexual acts against children -- section (3) provides: "'Child' means a person who has not yet attained the age of 16 years." D.C. Code § 46-403 (2006) provides: "The following marriages in said District shall be illegal, and shall be void from the time when their nullity shall be declared by decree, namely: . . . (4) When either of the parties is under the age of consent, which is hereby declared to be 16 years of age."

It is also worth noting that most states allow 16-year-olds to marry, and some even allow 15 or 14-year-olds to do so. Needless to say (I hope), none of this remotely excuses, mitigates or justifies predatory sexual acts by an adult against a 16-year-old, nor does it have any bearing on the responsibility of the House leadership. It is merely intended to suggest that whatever else Mark Foley's conduct with 16-year-olds might make him, "pedophile" is not really an appropriate term. And many of the more raucous and righteous condemnations of him as a pedophile and criminal seem to conflict with the laws in many American jurisdictions that provide that 16-year-olds have reached the age of consent.

UPDATE III: One last point: just this year, Republicans drew the line of age of consent at 18 when, with overwhelming support, they enacted the "Adam Walsh Child Protection and Safety Act of 2006," which the President signed into law (with Mark Foley standing behind him). By definition, then, they consider the acts in which Foley apparently engaged to be criminal. They even enhanced the penalties for this conduct. For those purposes, it doesn't really matter what states have designated as the age of consent because House Republicans have declared it to be a federal crime to solicit or discuss sexual acts with someone under the age of 18.

UPDATE IV: Whatever else might be true, it seems clear that Foley's predatory pursuit of pages has been known by some Republicans for at least several weeks in Washington. Here is a comment to a Daily Kos diary about Mark Foley, left on September 5 -- more than three weeks ago (emphasis added):

The Real Problem With Foley (0 / 0)

It's not that he's gay. It's that he constantly hits on underage interns on The Hill. You guys talk about an "open secret" well Foley's eye for the young boys in the White House and around the Capitol is what has the Republican bosses scared to death. It's just wrong that this guy can hit on young boys and still be in the leadership.

by WHInternNow on Tue Sep 05, 2006 at 05:48:09 PM PDT

The person leaving this comment claims in his profile to be a White House intern, which I highly doubt. Still, someone did leave this comment on September 5.

UPDATE V: Brad DeLong documents the rapidly and suspiciously changing stories -- three different ones in all -- told just last night alone by John Boehner, as well as the shoddy news coverage of this aspect of the story.

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