Who knows - this defense might actually work (h/t Pam):
All [Craig] had to do was hand the police officer a copy of the U.S. Constitution - the document the senator swore to uphold upon first taking office in Congress 27 years earlier.
There is little ambiguity in Article 1: Section 6, which clearly states no member of Congress can be arrested while traveling to or from official session.
Craig was arrested just after 12 noon June 11. He cast a vote on a high-profile cloture motion on the Senate floor at 5:55 p.m. that same day.
He did flash his card that said he was a Senator to the cop. Maybe he was on to something.
A bit more on this defense, why he probably won't use it, another defense that actually makes sense, and a bit on Arlen Specter, all after the jump.
Jeralyn at TalkLeft says:
So, assuming Craig's arrest was unlawful, does that mean MN can't issue him a summons or complaint? Or does it just mean, as with most illegal arrests, that anything the person says and any evidence obtained as a result of the arrest must be suppressed?
I would think that MN can still charge Craig -- they just can't use anything he said against him at trial. Immunity from arrest doesn't mean immunity from prosecution.
Considering Craig's post-arrest statement was a denial of the charges, "You saw something that didn't happen," I'm not sure his lawyers would want the statement suppressed. It shows a spontaneous denial of guilt.
The spirit of Article 1, Section 6 is to prevent police officers from arresting and detaining a member of Congress so that she can't vote on something. Considering that Larry Craig did get there in time and did make that cloture vote, the spirit wasn't violated. (Although I don't know if there is something that was missed earlier that afternoon.)
The letter of that section is here:
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
Essentially, a charge of "disorderly conduct" is the third exception, "breach of peace", although it's not really what he was doing since no one noticed his actions besides the arresting officer. I don't know exactly what "breach of peace" refers to, but I'm guessing that it was intended for actions more peace-breaching than Craig's, like that the Congressperson in question was doing something so disruptive to others that it was required that she be arrested just to keep her from doing it. If that's the interpretation of the "breach of peace" exception, then Craig's situation doesn't fall under it. Of course, I'm unfamiliar with the case law around this section because it's just so obscure.
But the Atlanta Journal-Constitution did report on a state representative who tried the same defense under a similar provision in the Georgia state constitution to get out of a DUI in 2005. The judge rejected his claim because his "meeting" was a dinner with other legislators, the same "meeting" where he got tipsy and hopped behind the wheel of a car. So with Craig the defense would seem more pertinent.
Jeralyn does have a defense for Craig, something that might let him withdraw his guilty plea. Craig didn't plead guilty in person, he pled guilty with a mail-in form sent to him by the state of Minnesota. You can see the form here.
Craig waived his right to an attorney, but the form doesn't tell him he has that right. It lists out a bunch of his other rights, but not that one in particular. From Jeralyn (emph. mine):
It's not enough for the defendant to say he is proceeding without counsel. He must be advised of his right to counsel and waive that right. (State v. Vieburg, 404 N.W.2d 312, 314 (Minn. App. 1987.)
An accused has the right to withdraw his plea of guilty upon establishing a denial of his right to counsel. McMann v. Richardson, 397 U.S. 759, 767, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970); State v. Waldron, 273 Minn. 57, 139 N.W.2d 785 (1966); see State v. Seebold, 280 Minn. 241, 246, 158 N.W.2d 854, 857 (1968); Reiff v. State, 41 Wis.2d 369, 164 N.W.2d 249 (1969). This conforms with A.B.A. standards. See ABA Standards Relating to Pleas of Guilty (Approved Draft, 1968), § 2.1. There is no indication on the record that Vieburg was ever advised of his right to counsel. Not only must a defendant be informed of his right to counsel before pleading guilty, he must make a knowing and intelligent waiver of that right on the record. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1973). We cannot presume that Vieburg was adequately advised and understood his rights. See State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983).
Being advised of Miranda rights after an arrest is not the same thing as being advised of the right to counsel before pleading guilty. The former can't substitute for the latter. Also, Rule 15.01 of the MN Rules of Criminal Procedure, applicable to misdemeanor pleas, provides:
Before the court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the court or counsel in substance as follows: ....3. Whether the defendant knows there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel.
It sounds pretty cut and dry here that, since he wasn't advised that he could have a lawyer at that stage of the game, that the plea isn't acceptable.
Sure, he's a Senator and he should know that he has a right to a lawyer, but, as Ellen pointed out yesterday, Craig was acting, on several levels and for several months, exceptionally stupid. And there's really no evidence to believe that he's stupid in general. Like Bil said, and I agree, sometimes closet cases do exceptionally stupid things because they're so terrified about being exposed. If Craig saw a lawyer, he never would have pled guilty with such little evidence against him. Maybe a reminder on that form would have been all that he needed to associate "lawyer" with "minor misdemeanor charge", go to the lawyer, get reminded again that pleading guilty won't make it go away, and then at least try to fight it quietly.
Bizarrely, Senator Arlen Specter (R-PA) is egging Craig on to fight the charge:
"I don't think either of them should have been asked to resign," Sen. Specter remarked. "I'd still like to see Senator Craig fight this case.
"He left himself some daylight Chris, when he said that he intends to resign in 30 days. I'd like to see Larry Craig go back to court, seek to withdraw his guilty plea and fight the case.
"I've had some experience in these kinds of matters since my days as Philadelphia district attorney, and on the evidence Senator Craig wouldn't be convicted of anything, and he's got his life on the line and 27 years in the House and the Senate and I'd like to see him fight the case 'cause I think he could be vindicated."
He's going to need all the help that he can get in the Senate. Minority leader Mitch McConnell already stripped him of his committee assignments and has threatened to have a long, drawn-out ethics investigation into everything if Craig doesn't resign. Then again, McConnell doesn't own the ethics committee, and I'm guessing that they'll just stick with the issue at hand. If Craig gets his plea withdrawn and beats the charge, which is entirely possible, then the investigation might just turn out to be short and sweet. He'll still need all the political allies he can get.
And he thinks he has them, considering this voicemail intended for his attorney:
"Yes, Billy, this is Larry Craig calling. You can reach me on my cell. Arlen Specter is now willing to come out in my defense, arguing that it appears by all that he knows that I have been railroaded and all that.
"Having all of that, we have reshaped my statement a little bit to say it is my intent to resign on Sept. 30. I think it is important for you to make as bold a statement as you are comfortable with this afternoon, and I would hope you could make it in front of the cameras.
"I think it would help drive the story that I'm willing to fight, that I've got quality people out there fighting in my defense, and that this thing could take a new turn or a new shape, it has that potential. Anyway, give me a buzz or give Mike a buzz on that. We're headed to my press conference now. "Thank you. Bye."
The dude sounds like he's intent on fighting.
And wouldn't that be the best, if Craig stayed on for another year, even ran for reelection in 2008? Think about it - the first Senator who's out to everyone in the country but himself, and he'll be quite a bit more than a thorn in the side of the GOP for another year and a half. In other words, a whole lot of political awesomeness.