Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig’s mistake wasn’t letting the clock run out on appealing his airport bathroom sex-solicitation case to the Minnesota Supreme Court — it was bringing the wrong case in the first place. That’s the view of Charles Samuelson, executive director at the American Civil Liberties Union of Minnesota (ACLU-MN), who thinks that a refusal to acknowledge his homosexuality impeded Craig’s ability to make his legal arguments.

In an interview with the Minnesota Independent, Samuleson didn’t disagree with Craig attorney Tom Kelly, who said that asking the state’s high court to take the former Idaho senator’s appeal “would have been a futile exercise.”

“[The Supreme Court] can only take what his lawyers bring,” Samuelson said, and Craig had his attorneys bring only “a very small and limited technical issue about his guilty plea.”

But Samuelson said an appeal might have been effective had Craig made civil liberties arguments that the ACLU-MN raised in a friend-of-the-court brief. “Our issues would probably be more attractive to the [state] Supreme Court,” Samuelson said.

The ACLU-MN asserted that Craig’s arrest in a police sting meant to ensnare men seeking gay sex at Minneapolis-St. Paul International Airport men’s room was a classic example of government suppression of unpopular speech.

“The problem is he was reluctant to say he’s a gay man,” Samuelson said, adding that Craig’s recent retirement from office likely lowered the stakes beyond the point at which Craig would press his case, no matter what the issue.

The Metropolitan Airport Commission (MAC), whose police set up the sting and pursued charges against Craig, seems to be in a similar frame of mind. The MAC, which is now fighting hard to extract as many dollars as possible from Delta Air Lines, turned away an apparently serious offer to buy, for $5,000, the bathroom stall where Craig’s alleged foot-tapping sex solicitation took place.

“We would not want to do that to the senator,” MAC spokesperson Patrick Hogan said.

The agency that runs the airport refused an apparently serious offer to buy the men’s room stall made famous by Craig’s 2007 conviction for disorderly conduct in a sex-solicitation sting operation by the airport police. The Metropolitan Airport Commission (MAC) spurned the $5,000 offer, which arrived by certified mail, according to MAC spokesperson Patrick Hogan.

“We would not want to do that to the senator,” Hogan told the Spokesman-Review newspaper of Spokane, Wash., which is just over the state line from Craig’s home state of Idaho. “We’d want to treat this case like we do any other, and we don’t sell fixtures for novelty purposes.”

Read more and see those intact fixtures for yourself in a new YouTube video after the jump.

Craig tried to take back his guilty plea, but – unlike issuing a presidential pardon – copping to a misdemeanor is irrevocable. That’s what the state Court of Appeals told Craig when it rejected his appeal earlier this month.

The revelation about the rebuffed purchase offer is part of a story on Hogan’s claim that sight-seers’ “special interest” in the bathroom has dwindled since Craig’s arrest. The men’s room’s status as a tourist attraction ended the gay cruising activity that the MAC police sting had targeted, Hogan said. That in turn allowed MAC officials to reverse their decision to extend stall walls to meet the floor, a project that would have cost several times the amount of the would-be stall-buyer’s offer.

The airport survived a boycott by Craig supporters only to find the MAC in heavy talks with Delta to renegotiate Northwest’s contracts following the airlines’ merger. The publicly owned and operated airport even faces privatization threats in the state legislative session that starts next month. By not remodeling the mens’ room, the airport commission can argue it has saved enough to afford its high-minded refusal to play-for-pay with at least one well-heeled sex-scandal devotee.

Still, Hogan sounded more like an enthusiastic tour guide than the spokesman for a thrifty public agency when he gushed, “The restroom looks exactly as it was when the senator was arrested.”

Here is a video re-enactment of Craig’s visit to the Minnesota airport men’s room, released Monday by satellite radio talk show host Michelangelo Signorile:

Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig (R-Idaho) cannot withdraw his guilty plea in the infamous 2007 Minneapolis-St. Paul airport bathroom sex case, the Minnesota Court of Appeals ruled today in an “unpublished” opinion. That means Craig is stuck with having copped in District Court to a misdemeanor charge of disorderly conduct for allegedly signaling an interest in engaging in sex via foot taps from one restroom stall to another in which an undercover police officer was staked out.

The decision’s “unpublished” status means the court doesn’t want its ruling used as precedent in future cases — interesting, in view of charges that Craig sought special treatment or was being singled out for preferential or especially harsh treatment because of his status as a U.S. senator. Craig issued this statement:

I am extremely disappointed by the action of the Minnesota Court of Appeals. I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport. I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing. I would like to thank all of those who have continued to support me and my family throughout this difficult time.

Whether the 28-year Senate veteran who is retiring this year plans an appeal isn’t known; Craig’s office has not yet returned a phone call to the Minnesota Independent. One recorded message said the staff was busy boxing up his files.

The case hinged on Craig’s plea, as cited in today’s ruling:

I am pleading guilty to the charge of Disorderly Conduct as alleged because on June 11, 2007, within the property or jurisdiction of the Metropolitan Airports Commission, Hennepin County, specifically in the restroom of the North Star Crossing in the Lindbergh Terminal, I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical (versus verbal) in nature.

And the offense that’s at the root of all this? As cited in today’s opinion:

The complaint stated that appellant “peered” into the restroom stall occupied by the officer for as long as two minutes and that the officer “observed the Defendant tap his foot several more times and move his foot closer to the stall occupied by [the officer.  The officer] moved his own foot up and down slowly.  [The officer] observed the Defendant move his right foot so that it touched [the officer‟s] left foot, at which point the Defendant‟s foot was within the stall area of the stall occupied by [the officer].”

Hudson, Toussaint and Kalitowski

A three-judge panel consisting of Judge Natalie E. Hudson, Chief Judge Edward Toussaint, Jr., and Judge Thomas J. Kalitowski issued the decision. The opinion has two parts. First, the panel denied Craig’s arguments that his plea wasn’t specific about what action he was pleading to, and that there wasn’t an adequate judicial record of the hearing where his written plea was entered. (There is a record, the judges said; Craig simply didn’t provide them with a transcript.) It was Craig’s fault, the judges wrote, that he didn’t ask for a second hearing to establish what had occurred at the first — but at the time, Craig was still hoping to keep the case hush-hush.

The court didn’t buy Craig’s insistence that no “others” were bothered by his conduct (besides the officer in the next stall) as the charge requires. The judges said they took “others” to mean people who were also in the restroom at the time, and anyway the presence of “others” beyond one other person can be theoretical.

Craig’s late-in-coming entrapment defense also didn’t move the judges, who found that, for one thing, the senator initiated the bathroom dialog, and for another, failing to assert entrapment isn’t grounds to take back a guilty plea.

In the second part of the opinion, the Court of Appeals panel found that the law under which Craig was charged does not inhibit free speech to an overly broad extent. The senator knew that his foot-tapping might “arouse ‘alarm, anger or resentment’” as required under the law, and also that it was an invasion of privacy.

The American Civil Liberties Union of Minnesota (ACLU-MN) filed an amicus brief in the appeal at the request of Craig’s attorneys, ACLU-MN Executive Director Chuck Samuelson told MnIndy in an interview today. Samuelson conceded that the Court of Appeals “didn’t like our arguments,” which focused on the free-speech aspects of the case. But he contends, “Their reasoning is wrong.”

They talked about the language ‘to arouse’ … that inciting language. They say [Craig] was doing it. But they ignored that the guy who started it [the airport police sergeant] was not Craig [the official charge quoted above notwithstanding].

Frankly the court is really conflicted on this one. My gut tells me they just wanted this case to go away. The ACLU’s position in these sorts of laws have been used against gay men for a long, long time. If the police were concerned about public sex in the bathroom, then they should have followed best practices of police departments — put a sign on door, send cops through … the activity will probably disappear from that restroom and move someplace else. …

This really is entrapment, in our opinion. There is a line there that we think this sergeant crossed. By [the court's] reasoning the police officer is more guilty than Craig.

This a classic first amendment case of government suppression of unpopular speech. If this is inappropriate, what’s the status in heterosexual pickup bars? They [Craig and the officer] weren’t engaging in or planning on having sex in the bathroom. They were planning it [for somewhere else].

There is a double standard. Speech is speech. This never got more than speech. You can’t regulate this speech and then not regulate the speech of heterosexual people. … We don’t have police officers posing as [sexually available] women or whatever. …  The antidote to bad speech is more speech — the sign on the door [prohibiting bathroom sex].

With this ruling, Craig regains his rightful place as Minnesota’s most prominent issue of public-sex-in-a-bathroom-stall — eclipsing the more recent occurrence at the Metrodome during a University of Minnesota football game, where a sex act actually took place in a bathroom stall.

“The conduct at the football game,” Samuelson says, “now that was conduct.”

A Minneapolis man was arrested the same month in the same restroom after responding to the same advances — an undercover officer’s foot-tapping. He was acquitted by a jury last week.

Craig has been trying to get his guilty plea withdrawn using the same argument lawyers for the Minneapolis man used to clear him of charges.

Defense lawyer Jeffrey Dean argued that the officer’s actions started the communication “which led to my client finally doing what the officer communicated my client to do, which was look into his stall, at which point they arrested him. We feel that that is misconduct and abusive and this would’ve never happened had the police never started all of this,” Dean told the Pioneer Press.

Craig’s lawyers are seeking an appeal to a Hennepin County District Court ruling denying Craig’s request to have his guilty plea withdrawn.

“Interns have the chance to be an essential part of a working congressional office,” said Craig in a press release today. “They participate in the legislative process as well as ensure that constituent services run smoothly. For those interested in politics, it is an incredible opportunity to get a behind-the-scenes look at how our government functions while serving the people of Idaho.”

365Gay.com speculates that the office may be having problems filling the position. “The Idaho Republican has sent a news release to newspapers throughout his home state offering the May to August positions. But with the deadline only three weeks away it remains unclear if the positions will be filled.”

And the interns probably won’t have to travel with Craig. “The intern job posting does not indicate if the students would be required to travel with the Senator.”

The committee also admonished Craig for using his campaign funds to pay his legal bills, which, since the charges were not related to his office, was a violation of Senate rules and, as the letter by the committee alluded, was also possibly a violation of Federal Election Commission laws. In addition, the committee said that Craig attempted to use his position to skirt the law by showing the arresting officer his business card.

The following is a portion of the three-page letter sent to Craig by the committee:

Through your accurate, voluntary and intelligent guilty plea, you were convicted in August 2007 of disorderly conduct, a misdemeanor, occurring on June 11, 2007, in a men’s public restroom at the Northstar Crossing in the Lindbergh Terminal of Minneapolis-St. Paul International Airport. The committee accepts as proven your guilty plea and all matters set forth in your guilty plea, including your statements therein: that you reviewed the arrest report and/or complaint relating to the charges against you; that on June 11, 2007, at the Minneapolis-St. Paul International Airport restroom you engaged in conduct which you “knew or should have known tended to arouse alarm or resentment [in] others which conduct was physical (versus verbal) in nature”; that at the time of your plea you made no claim that you were innocent of the charges to which you entered a guilty plea; and that you entered your guilty plea freely and voluntarily.

An appeal to a court decision denying Craig’s request to have his guilty plea withdrawn is pending in the Minnesota court system. Craig says that he will retire his seat in 2008 but will not step down.

When Craig was arrested he was originally charged with interference with privacy, as well as disorderly conduct, a point the ACLU uses to argue its case. Citing a Minnesota Supreme Court decision from 1970, the ACLU argues that law enforcement invaded Craig’s privacy and the fact that he was charged with an interference of privacy demonstrates that his actions and the location where the arrest occurred were private. In other words, the court was using a circular argument to deny Craig’s request to withdraw his plea.

“When it charged the defendant with interference with privacy,” the brief read, “it alleged that he had looked into a ‘place where a reasonable person would have an expectation of privacy.’”Because of the private designation of restroom stalls, there was no crime  committed, even if Craig had had sex. “The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom,” it said.

In fact, the brief says, private sex is not illegal and neither is publicly asking someone to have private sex:

Sex is a constitutionally protected liberty interest. Thus, the government may make sex a crime only where it has a constitutionally sufficient justification for doing so. The government does not have a constitutionally sufficient justification for making private sex a crime. It follows that an invitation to have private sex is constitutionally protected and may not be made a crime. This is so even where the proposition occurs in a public place, whether in a bar or in a restroom.

As Craig’s lawyers have also argued, the brief says that Craig’s actions constitute protected speech. “Physical gestures that amount to an invitation to have private sex are a form of constitutionally protected expression,” the brief says. Craig was arrested “for soliciting an act which is not a crime.”