This first argument is, in fact, the best argument to make here outside of a court. If the officer started tapping his own foot, then how can we be sure that Larry Craig would have been disorderly without the officer there?

The officer's report says that Craig started tapping his foot, then the officer did, and then Larry Craig touched the officer's foot with his own foot.

The original prosecutor's claim that this was in fact "disorderly conduct" had three specific components:

1. Craig stood outside the bathroom stall looking in at officer Karsnia,


2. their feet touched, and


3. Craig's hand entered the space in Karsnia's stall.

If they're correct that the officer was "asking for it", then the second and the third instance of specific disorderly conduct go away, but that doesn't address the staring. (I don't have the new petition, so I don't know if that was addressed separately.)

This basically amounts to arguing entrapment without positively arguing an entrapment defense - the officer encouraged the behavior so it just takes away from the "arousing anger" requirement of the Minnesota criminal code. I agree; if I responded to the foot-tapping, knowing as the officer did that it was a signal, then I would definitely not be bothered if Larry Craig continued with his signals.

It's still an uphill battle and the arguments aren't clearly on Craig's side.

The second argument Craig's making is grammatical:

Those lawyers also contend the Idaho Republican should have his guilty plea to a disorderly conduct charge thrown out because what he did last June wasn't a crime. The reason: The state's disorderly conduct statute says the conduct in question has to alarm or anger others - plural - and Craig's actions affected just the undercover officer.

The law doesn't actually say that he has to "arouse anger or alarm", unlike what the Pioneer Press article reports. It says that disorderly conduct is

offensive, obscene, abusive, boisterous, or noisy conduct or... offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

So the argument that the cop was the only victim, making "others" singular, doesn't fly - the law pretty explicitly states that the behavior would only have to reasonably tend to anger or alarm others. I think a prosecutor could easily make the argument that Craig's behavior would have, especially considering that without the grammatical component it's basically the same argument that Craig made back in September, and a prosecutor already argued that it would and a judge already agreed.

I'm going to make the easy prediction here and say that Craig loses again.

Craig's arguments last time around were that 1) he didn't talk to a judge before entering the plea so he wasn't informed of his rights by the court and 2) he didn't commit any disorderly conduct because all he did were some hand gestures. This appeal seems substantially more desperate.

But we do get this gem from the Pioneer Press article:

Locally, the senator is represented by longtime Minneapolis attorney Thomas Kelly, who, when asked for comment, replied, "Never drive over to St. Paul to have a filing with your puppy in the car. She's barking at every strange sound and smell."

He did not elaborate.

All I know about Minnesota I learned watching Fargo, so this fits with my idea of the place.

(h/t JMG)