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.

Monday, October 02, 2006

Various Foley scandal items

(updated below - updated again)

Several matters relating to the Foley cover-up scandal:

(1) My post on the letter sent by Denny Hastert to the DOJ is below.

(2) I need to clarify and correct something I wrote the day after the scandal was first disclosed (Saturday). In this post, I argued that the "pedophile" rhetoric being righteously hurled at Mark Foley was not really appropriate, given that many (if not most) Americans live in states where it is perfectly legal for an adult of any age to have sex with a 16-year-old. The notion that an adult who has sex with a 16-year-old is a "pedophile freak" who deserves to be imprisoned with the key thrown away is (independent of whether it's right or wrong) inconsistent with the values enshrined in the laws of many (if not most) states, which provide that 16-year-olds are capable of consenting to sex (and even getting married).

I further pointed out that to the extent Foley's online sexual chats with 16-year-old pages were criminal, that was so only by virtue of an incoherent contradiction in the law where in-person sex with that page in D.C. would be legal, while online solicitation would be criminal because federal laws define "minor" as those under 18 years of age. To make that point, I cited 18 U.S.C. 2251 and the Adam Walsh Child Protection Safety Act of 2006, and pointed out that they both define "minor" as anyone under 18 years old.

Although I was quite unclear about this, the point of my post was not to suggest that I had formulated the definitive legal analysis proving that Mark Foley had committed federal crimes. Instead, my point was that any criminality was due to this incoherent contradiction in the law (between local age of consent laws and federal online sex laws that define minor as someone under the age of 18). But others, understandably (and due entirely to my lack of clarity), have quoted my argument in a way that gives the impression that I was opining definitively that Foley's conduct was prohibited by those two specific statutes, which very well may not be the case.

It does seem clear that Foley's conduct is at least potentially prohibited by some federal statutes. An excellent survey of internet child predator laws is here:

Federal laws have also been enacted to protect children from predators who attempt to lure them into an off-line meeting for the purpose of performing illegal sexual acts or coercing them to provide sexually explicit photos of themselves. In April 2003, Congress passed a law that provides wiretapping authority for seven sexual offenses, including child pornography and the sexual exploitation of children.

Similarly, in his statement released yesterday, Harry Reid said: "Under laws that Congressman Foley helped write, soliciting sex from a minor is a federal crime."

But exactly what statutes were violated and how is somewhat murky, at least to me at this point. My reference to 18 U.S.C. 2251 was clearly in error. That statute criminalizes only the solicitation or inducement of minors to engage in sexual acts for purposes of creating a visual depiction of sexual acts for sale or distribution. That has nothing to do with what Foley did, given what we know.

But the Child Protection and Sexual Predator Punishment Act of 1998 very well may prohibit the conduct in question. The House Report states:

Contacting minors for sexual purposes. This section amends the federal criminal code by establishing a fine and up to 5 years in prison for anyone who, using the mail or any facility of interstate or foreign commerce . . . knowingly contacts (or attempts to contact) an individual who has not attained age 18, or who has been represented to the person making the contact as not having attained age 18, for purposes of engaging in criminal sexual activity.

Under current law, the Federal Government must prove that a pedophile 'persuaded, induced, enticed or coerced' a child to engage in a sexual act. This standard allows the criminal to establish a prolonged, intimate and highly destructive relationship with the victim, involving explicit sexual language, without actually violating the law. This new crime, which is similar to laws being enacted at the state level, establishes a lower penalty for initiating a harmful relationship with a child for the purpose of engaging in illegal sexual activity.

But whether that interpretation is applicable to the enacted bill itself is unclear. And the Adam Walsh Act itself, in section 111(7)(C) provides: "The term 'specified offense against a minor'' means an offense against a minor that involves any of the following: . . .(C) Solicitation to engage in sexual conduct" and: "(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct" (although that seems to govern which crimes qualify for the sexual offender registry and, independently, there is the issue as to whether any of Foley's acts fall within the purview of this 2006 law). Moreover, both 18 U.S.C. 2252 and Section 501 of the Adam Walsh Act criminalize various forms of child pornography, which may include the transmission of sexually-related materials to or concerning a minor. And then there are also statutes in Florida governing such conduct.

As I indicated this morning, the legal aspects of this scandal are, at the very most, secondary. Whether Rep. Foley's conduct is criminal under federal law, or whether the conduct of the GOP leadership is criminal, is largely irrelevant (and to know that that's true, imagine what will happen if the GOP's defense becomes: "Rep. Foley's conduct was not in violation of any law, so we felt we had no basis to take any action to stop it" or "Rep. Hastert had no obligation under federal law to stop Rep. Foley's conduct"). Whether criminal or not, the GOP House leadership has an obligation to ensure that Congressmen are not sexually pursuing 16-year-old pages entrusted to the Congress. But I nonetheless wanted to correct my error from the other day and to clarify the point of that post.

(3) LaShawn Barber has joined Captain Ed and other conservatives in expressing disgust for Denny Hastert and calling for his resignation. Her post is worth reading because it is clearly heartfelt and genuine and it really illustrates the core point here. Barber and Captain Ed want the Republicans to win in November as much as any other Republican. Their desire for a Republican victory is as great and intense as the desire on the part of Bush critics for the Republicans to lose.

But as intense as their desire is to win the election, they obviously are not willing to condone behavior that is reprehensible or make excuses for predatory conduct. That is precisely the choice which GOP House leaders failed to make. To the contrary, Hastert and company placed their desperate desire to cling to power over everything else, and were therefore willing to do anything, including protect Foley, in order to accomplish that goal. Bush supporters like Captain Ed and Barber deserve genuine praise. Many people on both sides would defend or endorse conduct on the part of leaders of their party no matter how repugnant or dishonest -- especially five weeks before a critical election. Their refusal to win at all costs is commendable behavior that is notable because it is precisely the opposite of what is fueling the corrupt, power-desperate GOP House leaders.

(4) A reader at TPM expresses what is, right now, probably the single most important point to keep clear with regard to this scandal. I would just add to this point the fact that -- as I noted yesterday (see UPDATE VII) -- when CREW received the e-mails sent by Foley to the page, CREW (without having or knowing about the IMs) immediately recognized how suspicious they were and sent them to the FBI.

Any reasonable person would have seen those e-mails as being, at the very least, suspicious, and would have immediately looked further to determine if Foley was repeatedly harassing pages. Even the most minimal investigation would have led GOP House leaders to the reams of information (including the IMs) revealing (if they did not already know) the extent of Foley's behavior.

UPDATE: The fact that this scandal began on a Friday turned out, I think, to be a blessing, as it gave journalists a few days to ingest its significance and to understand what was really at play here. Most of the media have been suprisingly good today in not allowing the real issues to be obscured. This editorial from USA Today argues what is really the key point clearly and persuasively:

Several House leaders had known about the matter at least since spring but failed to take appropriate action. Even accepting their insistence that they knew only of ambiguously "overfriendly" e-mail, rather than the unmistakable obscenities that have recently come to light, their reaction is disturbing.

The slightest hint of a member of Congress making advances toward an underage page is a serious matter. More so because it has happened before, disgracing two congressmen in the 1980s. It speaks directly to the integrity of the institution and the safety of the teens who work for it. For that reason, House Speaker Dennis Hastert had every obligation to investigate this matter fully.

Instead he and other Republican leaders maintained what could at best be termed a posture of willful ignorance. Hastert asserts that he only recently was apprised of the matter. Members of his staff and other leaders make no such claim.

Unless a better explanation appears, the one most likely to be accepted is of an effort to sweep an embarrassment under the rug.

Even the most ardent Bush critic can't deny the political talent they have for obscuring even the most incriminating facts. But here, everyone can see that GOP House leaders either knew or chose to look the other way while one of their own preyed on Congressional pages, and none of their standard tactics is working to deflect that fact. Worse (for them), the more they defend themselves, the more they appear to be minimizing the significance of what Foley did and even continuing their cover-up. Referring to anything Foley did here as "naughty" is itself rather creepy.

It really is hard to believe how tailor-made and perfect this scandal is. It guts every Republican advantage and inflames every one of their disadvantages.

UPDATE II: Denny Hastert has issued another statement today (though he refused to take questions from any reporters), and he is basically invoking the O.J. Simpson "defense":

I repeat again. The Republican Leaders of the House did not have them [the IMs]. We have all said so. On the record. But someone did have them. And the ethics committee, the Justice Department, the news media - or anyone who can - should help us find out who.

Hastert, translated: "There is someone out there who knew that Foley was preying on pages and did nothing about it, and we need an investigation right away to find out who it was." The shamelessness is astounding.


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